Sunteți pe pagina 1din 31

Case Section Facts Issue Observation Decision

Gundaji Section Plaintiff sued for Whether the Observations: If there is an issue
Satwaji 9 specific performance plaintiff is an There can be a civil suit properly which had to be
of a contract for sale agriculturist or constituted which the civil court settled, decided or
Shinde v.
of agricultural land in not, would the will have jurisdiction to dealt with by the
Ramachan the civil court and civil court have entertain but therein an issue competent
dra defendant appeared jurisdiction to may arise upon a contest when authority under the
Bhikaji and raised a decide the issue contentions are raised by the Tenancy Act, the
Joshi contention in Sec 63 or the Civil party against whom the civil suit jurisdiction of the
(AIR 1979 of the Tenancy Act the Court would is filed. Upon such contest, Civil Court,
SC 653) plaintiff being not an have to refer issues will have to be notwithstanding the
agriculturist, he is the issue under determined to finally dispose of fact that it arises in
barred from Sec. 85-A of the the suit. If any such issue arise an incidental
purchasing the land. Tenancy Act to which is required to be settled, manner in a civil
Such an issue being the authority decided or dealt with by the suit, will be barred
within the exclusive constituted competent authority under the and it will have to
jurisdiction of the under the Act, Tenancy Act, even if it arises in be referred to the
Mamlatadar viz. Mamlatdar. civil suit, the jurisdiction of the competent
(competent authority Civil Court to settle, decide and authority under the
set up under the deal with the same would be Tenancy Act.
Tenancy Act). barred by the provision Therefore court
contained in Sec. 85 and the overruled the
Civil Court will have to take decision of the High
recourse to the provision Court, upholding the
contained in Sec. 85-A for jurisdiction of the
reference of the issue to the Civil court to deal
competent authority under the with the issue
Tenancy Act. instead of referring
The court further observed that it to the Mamlatdar.
a suit for specific performance
of a contract for sale of land is
cognizable by the civil court and
its jurisdiction would not be
ousted merely because contract,
if enforced, would violate some
provisions of the Tenancy Act, If
contract when enforced would
violate some provisions of the
Tenancy Act it may be that the
competent authority under the
Tenancy Act, it may be that the
competent authority under the
tenancy Act may proceed to
take action as permissible under
the law but the Court cannot
refuse to enforce the contract.
2 Indian Section Bank filed Summary Whether the bar The word “trial” in Section 10, in The bar to proceed
Bank v. 10- Res Suit in the Bombay to proceed with its widest sense would include with trial of
Sub High Court under trial of all the proceedings from the subsequently
Maharash
Judice Order 37 of the Code subsequently stage of institution of a plaint in instituted suit,
tra State against the Federation instituted suit, a civil case to the stage of final contained in Sec. 10
Co- for obtaining a decree contained in determination by a judgments is not applicable to
operative for Rs. 4,96,59,160 Sec.10 is and a decree of the Court. summary suit filed
Marketing alleging that the said applicable to However, in view of the object under Order 37 of
amount has become summary suit and nature of the provision and the CPC.
Fed. Ltd.
recoverable under a filed under the fairly settled legal position
(AIR 1998
Letter of Credit. The Order 37 of the with respect to passing of
SC 1952)
Bank took out Code. interlocutory orders it has to be
summons for stated that the word ‘trial’ in
judgment. The Sec. 10 is not used in its widest
Federation appeared sense.
before the Court and Considering the objects of both
took out Notice of the provisions i.e. Sec. 10 and O.
Motion seeking stay of 37, wider interpretation of the
the summary suit on word “trial” is not called for. The
the ground that it has word ‘trial’ in Sec. 10 in the
already instituted a context of summary suit cannot
suit being Suit against be interpreted to mean the
the Bank for recovery entire proceedings starting with
of Rs. 3,70,52,217.88 the institution of the suit by
prior to the filing of lodging a plaint. In a summary
the summary suit. suit the ‘trial’ really begins after
the Court/Judge grants leave to
the defendants to contest the
suit. Therefore, the Court/Judge
dealing with the summary suit
can proceed up to the stage of
hearing the summons for
judgement and passing the
judgement in favour of the
plaintiff if (a) the defendant has
not applied for leave to defend
or if such application has been
made and refused or if (b) the
defendant who is permitted to
defend fails to comply with the
conditions on which leave to
defend is granted.

3.Iftikar Section There was conflict of Whether earlier The SC held that if following 4 The SC held that
Ahmed v. 11- Res interest among co- decision of the principles were satisfied then it since the four
judicat plaintiffs. In the court regarding would operate as res- juducata- conditions were
Syed a previous suit, Ishtaq the title of the 1)-There must be a conflict of satisfied in the case
Meharban betwe Ahmed, K.Fatima, Property in interest between the parties. and thus the
Ali, AIR en co M.Ali (Co-plaintiffs) question would 2)-It is necessary to decide that principle of res
1977 SC defend instituted a suit operate as res- conflict in order to give relief judicata has to
ant against the judicata in and determine the issue in the operate.
749
mortgagee, relating to between the case.
shares of the latter parties. 3)-That such a conflict has been
two in mortgaged conclusively determined.
properties.in that suit 40)-The Co-defendants were
it was decided that necessary or proper parties in
only Ishtaq Ahmed the former suit.
had title to the
properties and other
two had no title. The
question of title which
was in dispute was
conclusively
determined by a
competent court. In
the later suit the
dispute was in
between Ishtaq
Ahmed on the one
hand and K. Fatima
and M. Ali on the
other hand regarding
the same property.
The matter was
referred to the
arbitrator.
4. State of Section In this case, the Whether a The provisions of Sec. 11 CPC The plea taken in
U.P. v. 11, petitioner was decision of the are not exhaustive with respect the subsequent suit
Explan dismissed from High Court on to an earlier decision operating was an important
Nawab
ation service. He filed a writ merits on a as res judicata between the plea which was
Hussain IV- petition on the ground certain matter same parties on the same within the
(AIR 1977 Constr of denial of after contest, in matter in controversy in a knowledge of the
SC 1680) uctive opportunity of being a writ petition subsequent regular suit and that petitioner when he
Resjudi heard and that the under Art. 226 on the general principle of res filed the previous
“Constructiv cata action taken against of the judicata, any previous decision writ petition and
e Res him was mala fide. Constitution, on a matter in controversy, this plea could well
Judicata” After that dismissal of operates as res decided after full contest or have been taken in
petition he filed judicata in a after affording a fair opportunity the same petition.
another petition regular suit with to the parties to prove their case
alleging that he was respect to the by a Court competent to decide
appointed by the same matter it, will operate as res judicata in
Inspector General of between the a subsequent regular suit. It is
Police and he was same parties. not necessary that the court
dismissed by the deciding the matter formerly be
Deputy I.G. He alleged a competent to decide the
that the latter was not subsequent suit or that the
empowered to dismiss former proceeding and the
him and therefore his subsequent suit have the same
order of dismissal was subject-matter.
by a person who did
not have the power to
do so. He further
contended that, he
was not afforded a
reasonable
opportunity to meet
the case against him
in the departmental
inquiry and that the
action taken against
was mala fide.

5. C.A. O.2 In the present case, Whether O.2, The principle underlying O.2, R.2 If second suit is
Balakrishn Rule 2. the prayer in the writ R.2 applies to being based upon public policy, barred, a writ
petition is for the the writ petition a person who files a suit seeking petition would
an v.
issuance of a writ of or not? certain relief in respect of a equally be barred,
Commissi mandamus directing cause of action is precluded public policy
oner, the respondent to from instituting another suit for underlying O.2, R.2
Corpn. of restore the possession seeking other reliefs in respect is attracted with
Madras of the premises to the of same cause of action under equal vigor in this
(AIR 2003 petitioner, a licensee. O.2, R.2. The relinquishment of situation also.
MAD 120) It is admitted fact that part of claim is not permissible
the petitioner has and omission to sue for one of
filed original suit for several reliefs is also prohibited.
mandatory injunction Likewise, the same person
of restoration of cannot be allowed to invoke the
possession to him of writ jurisdiction of this court for
the premises, which obtaining the very same reliefs.
was dismissed and
which is also the
subject matter of the
writ petition.

Topic 6 :
Appeals
6. Section Much before the Whether the a) Not disputed that this is a As far as the
Chunnilal 100 expiry of contractual contruction of Question of law since what merits of this Case
(Secon period, the a document of Apellent is challenging is the are concerned, Cl
v. Mehta
d respondent company title which is
interpretation of some 14 is clear. And
v. Century Appeal removed the clauses of a document. But is sets out the
Spining foundation of this an SQOL ? If it is decided precise sum to be
) appellants as
the rights of so, then per A 133(1), the HC claimed as
and managing agent. The
appellants filed a suit the parties was required to certify it so damages. Once
Manufact raises a done, they must
uring Co. in the Bombay High question of and so, in not giving the be deemed to
Ltd., AIR Court Claiming law and the Certificate it was wrong. exclude the right
damages. The H.C interpretation b) In an earlier Bombay to claim an
1962 SC
decided in favour of of such
Case, it was held that merely unascertained
1314 the respondent becasue an inference was to sum as damages.
document be drawn from a complicated So, Cl 10 and 12
company. The
raises a Decree, no SQOL would do not hold any
Appellants moved to
SC by special leave. substantial arise. OTOH, in a Nagpur more since the
question of case it was held that an profit herein is not
Law ? SQOL arises if it is important yet ascertained.
between the parties and the Hence the decree
case turns on that. SC of the HC on this
disagreed with both these matter is held.
views and agreed with that of
Madras High Court ( R.
Subba Rao v. N. Veeraja )
and set out the following
principles of a SQOL
a) It directly and
substantially affects the
rights of the parties. It need
not be a question of general
importance.
b) It is an open question,
not finally settled by this
Court or there is a doubt
about the principle of law
involved, or calls for
discussion of alternative
views.
c) If the question is
ALREADY well settled or
its general principles are
well settled and only its
application remains or that
the plea raised is palpably
absurd, then it is NOT a
SQOL., howsoever difficult it
maybe or howsoever large its
affect ( Pankaj V Mohinder
AIR 1991 )

7. Koppi Section Substantial Question Recommendation of Law


Setty v. 100 of Law commission in 1973 amended
section 100 which made it
Ratnam.
compulsorily to formulate
V. substantial question of law.
Pamarti
Venka An unqualified right of first
appeal may be necessary for
2009 RLR the satisfaction of the defeated
27 (NSC) litigant but wide right of 2nd
appeal is more a luxury.

Now high courts have only in


case where substantial question
of laws are involved and those
questions have been clearly
formulated in the Memo of
appeal
8. Gill & Sectio Eviction notice to Whether the Jurisdiction of the
co. v. n M/S Gill & Co on learned • The general rule is that High Court in
107, R grounds of tribunal was an appellate court shall decide 2nd Appeal is
Bimla ule 27 (a) non-payment of correct in an appeal on the evidence led confined to the
Kumari, of rent; rejecting the by the parties before the lower determination of
1986 RLR Order (b)misuse , application for Court and shall not admit substantial
370 XLI of (c) bona fide production of additional evidence for the question of law
the requirement as additional and not to reverse
purpose of disposal of an
Code residence for herself evidence. the findings of fact.
appeal.
and members of her Hence High Court
• Evidently it is not a case
family ; in 2nd appeal
(d) Sub-letting. where the lower Court had cannot re-
improperly refused to admit appreciate the
evidence. It was never tendered. evidence and
• Likewise, it is not the interfere with the
case of the appellants that the findings of fact
additional evidence sought to be reached by the
produced by them at the lower appellant
appellate stage was not within court, unless of
their knowledge or that the course, it can be
same could not be produced shown that there
after exercise of due diligence was an error of
No such effort seems to have law in arriving at it
been made. or that it was
• The only question which based on no
evidence at all or
falls for consideration is
was arbitrary,
whether the additional evidence
unreasonable or
was required by the Appellate perverse. The
Court for enabling it to High Court was
pronounce judgment or was incompetent to re-
there any other substantial assess the
cause for allowing the same. evidence afresh
and it was bound
by the decision of
the Tribunal on
questions of fact.

TOPIC-7
REFERENCE
9. Haridas S.114 What is the • In order to appreciate When the aforesaid
Das v. r/w scope of the scope of a review, Section principles are
O.46 review under 114 of the CPC has to be read, applied to the
Smt. Usha Section 114 but this section does not even background facts of
Rani read with adumbrate the ambit of the present case,
Banik, Order XLVII of interference expected of the the position is clear
2006 (3) CPC. Court since it merely states that that the High Court
SCALE 287 it may make such order thereon had clearly fallen in
as it thinks fit. error in accepting
• The parameters are the prayer for
prescribed in Order XLVII of the review. First, the
CPC and for the purposes of this crucial question
lis, permit the defendant to which according to
press for a rehearing on account the High Court was
of some mistake or error necessary to be
apparent on the face of the adjudicated was the
records or for any other question whether
sufficient reason. the Title Suit No.
• The former part of the 201 of 1985 was
rule deals with a situation barred by the
attributable to the applicant, provisions of Order
and the latter to a jural action II Rule 2 CPC. This
which is manifestly incorrect or question arose in
on which two conclusions are Title Suit No.1 of
not possible. Neither of them 1986 and was
postulate a rehearing of the irrelevant so far as
dispute because a party had not Title Suit No.2 of
highlighted all the aspects of the 1987 is concerned.
case or could perhaps have Additionally, the
argued them more forcefully High Court erred in
and/or cited binding precedents holding that no
to the Court and thereby prayer for leave
enjoyed a favourable verdict. under Order II Rule
2 CPC was made in
• This is amply evident the plaint in Title
from the explanation in Rule 1 Suit No.201 of 1985.
of the Order XLVII which states The claim of oral
that the fact that the decision agreement dated
on a question of law on which 19.8.1982 is
the judgment of the Court is mentioned in para 7
based has been reversed or of the plaint, and at
modified by the subsequent the end of the plaint
decision of a superior Court in it has been noted
any other case, shall not be a that right to
ground for the review of such institute suit for
judgment. specific
performance was
reserved. That being
• Where the order in so the High Court
question is appealable the has erroneously
aggrieved party has adequate held about
and efficacious remedy and the infraction of Order II
Court should exercise the power Rule 2 CPC. This was
to review its order with the not a case where
greatest circumspection. Order II of Rule 2
CPC has any
• A perusal of the Order application.
XLVII, Rule 1 show that review of The order of the
a judgment or an order could be High Court is clearly
sought : (a) from the discovery contrary to law as
of new and important matters laid down by this
or evidence which after the Court. The judgment
exercise of due diligence was of the High Court in
not within the knowledge of the review application is
applicant; (b) such important set aside.
matter or evidence could not be Consequently,
produced by the applicant at the judgment and order
time when the decree was passed in the
passed or order made; and (c) Second Appeal
on account of some mistake or stand restored.
error apparent on the face of Appeal is allowed
record or any other sufficient with no order as to
reason. costs.

• In Aribam Tuleshwar
Sharma v. Aribam Pishak
Sharma (AIR 1979 SC 1047) this
Court held that there are
definite limits to the exercise of
power of review. In that case, an
application under Order XLVII,
Rule 1 read with Section 151 of
the Code was filed which was
allowed and the order passed by
the judicial Commissioner was
set aside and the writ petition
was dismissed.

The court held that the power of


review may be exercised on the
discovery of new and important
matter of evidence which, after
the exercise of due diligence
was not within the knowledge of
the person seeking the review
or could not be produced by him
at the time when the order was
made, it may be exercised
where some mistake or error
apparent on the face of the
record is found; it may also be
exercised on any analogous
ground. But, it may not be
exercised on the ground that
the decision was erroneous on
merits. That would be the
province of a Court of appeal. A
power of review is not to be
confused with appellate power
which may enable an Appellate
Court to correct all manner of
errors committed by the
Subordinate Court
TOPIC-8
INHERENT
POWERS OF
COURT (S.151)
10. Section The appellant had Whether the S.148 of the code, in terms, the Apex court set
Mahant 148, filed a suit for the High court in allows extension of time even if aside the order of
149 & declaration that he the the original period fixed has the High court not
Ram Das
151 was nominated circumstances expired, and S. 149 is equally to enlarge the time,
v. Mahant liberal. A fortiori, these sections and held that the
Ganga Mahant of Moghal of the case,
could be invoked by the High court could
Juan Sangat which was powerless
Das, AIR applicant, when the time had have exercised its
was dismissed by to enlarge the not actually expired. powers first under S.
1961 SC the trial judge. The time, even Such procedural orders, as in 148 and then under
882 appeal was decided though it had this case to pay the court fees s. 151, CPC.
in his favour on peremptorily within the time fixed, though
condition that he fixed the peremptory are in essence, in
pay the deficient period for terrorem, so that dilatory
court fees, within payment? litigants put themselves in order
the time specified and avoid delay. They do not,
by the court. Before however, completely estop a
court from taking note of events
the expiry of the
and circumstances which
period of three
happen within the time fixed.
months,he had filed
an application under
section 148 and 149
read with section
151 CPC for
extension of time
was dismissed by
the High court.

TOPIC-10
AMENDMENT
OF PLEADINGS
[O.VI,RULE 17]
11. Jai Jai O.6 Manohar lal Whether there The plaintiff was carrying on The name in which
Ram Rule 17 commenced an action should be an business as commission agent in the action was
against the defendant amendment or the name of “Jai Jai Ram instituted was
Manohar
.The action was not really turns Manohar Lal.” The Plaintiff was merely a
Lal v. initiated in the name competent to sue in his own misdescription of
National upon whether
of “Jai Jai Ram name as Manager of the Hindu original plaintiff, no
the suit is
Building Manohar Lal” which undivided family to which the question of
was the name in brought is the business belonged. He says he limitation arises; the
Material
which the business name of a non- sued on behalf of the family in plaint must be
Supply existent
was carried on.The the business name. deemed on
Co., AIR plaintiff applied for person or There is no rule that unless in an amendment to have
1969 SC leave to amend the whether it is application for amendment of been instituted in
1267 paint. merely a the plaint it is expressly averred the name of the real
misdescription that the error, omission or plaintiff on the date
of existing misdescription is due to a on which it was
persons. bonafide mistake, the court has originally instituted.
no power to grant leave to
amend the plaint. The power to The order passed by
grant amendment of the the Trial court in
pleadings is intended to serve granting the
the ends of justice and is not amendment was
governed by any such narrow or clearly right, and the
technical limitations. High court was in
error in dismissing
the suit on a
technically wholly
unrelated to the
merits of the
dispute.
12. M/S O.6 Appellant-plaintiff m/s Procedural law is intended to The suit having been
Ganesh Rule 17 Ganesh Trading facilitate and not to obstruct the instituted by one of
Co.,Karnal, had filed a course of substantive justice. the partners of a
Trading
suit through Shri jai A party cannot be refused relief dissolved firm the
Co. v. Prakash, a partner of merely because of some mere specification
Moji Ram, that firm, based on a mistake, negligence, of the capacity in
AIR 1978 promissory note. It inadvertence or even infraction which the suit was
SC 484 was asserted that the of the rules of procedure. filed could not
suit was incompetent change the
for want of character of the suit
registration of the or the case. It made
firm and was struck by no difference to the
the provisions of s.69 rest of the pleadings
of the Indian or to the cause of
Partnership Act.The action. Indeed, the
Plaintiff filed an amendment only
amendment sought to give
application wherein it notice to the
was stated that the defendant of the
plaintiff had facts which the
“inadvertenently plaintiff would and
omitted certain could have tried to
material facts which prove in any case.
are not (now) This notice was
necessary to being given, out of
incorporate in the abundant caution,
plaint so as to enable so that no technical
the court to consider objection may be
and decide the subject taken that what was
matter of the suit.” sought to be proved
was outside the
pleadings.
13. Dalip O.6 The plaintiff filed an The Purpose of O.6 Rule 17 is to The amendment
Kaur v. Rule 17 application under O.6 allow either party to alter or does not defeat any
Rule 17 seeking amend his pleadings in such legal right allegedly
Major
amendment of the manner and on such terms as having accrued to
Singh, AIR plaint by making a may be just. The power to allow the opposite party
1996 P & prayer for declaring the amendment is wide and can and the delay in
H 107 the judgement and be exercised at any stage of the filing the petition for
decree passed in civil proceedings in the interest of amendment can
“Principles suit entitled Major justice on the basis of guidelines properly be
were laid Singh v. Balbir Kaur as laid down by various high courts compensated by
down while null and void and and Supreme court of India. costs.
dealing ineffective against the
with rights of the plaintiff. Principles were laid down
application while dealing with
of application of amendment”
amendment

14. B.K. O.6 The respondent- The Purpose of O.6 Rule 17 is to The appellant-
Narayan Rule 17 plaintiff filed a suit allow either party to alter or defendant is
against the appellant amend his pleadings in such permitted to amend
Pillai v.
–defendant praying manner and on such terms as the written
Paramesw for the grant of may be just. The power to allow statement to the
aran, mandatory and the amendment is wide and can extent of
(2000) 1 prohibitory injunction be exercised at any stage of the incorporating the
SCC 712 seeking eviction proceedings in the interest of plea of his
allegedly on the justice on the basis of guidelines entitlement to the
ground of his being a laid down by various high courts benefit of s.60(b) of
license. and Supreme court of India. the Indian
Easements Act,
1882 only subject to
his paying all the
arrears on account
of licence fee and
costs assessed at
Rs.3000 within a
period of one month
from the date the
parties appear in
the trial court.
TOPIC 11-
REJECTION OF
PLAINT (O.VII,
RULE 11)
15. O.7 Whether an O.7 Rule 11 makes it clear that Therefore a
Saleem Rule 11 application the relevant facts which need to direction to file the
under O.7 Rule be looked into for deciding an written statement
Bhai v.
11 ought to application there under are the without deciding
State of averments in the plaint. the application
decided on the
Maharash allegations in For the purpose of deciding an under O.7 Rule 11
tra, AIR the plaint and application under Clauses (a) cannot but be
2003 SC filing of the and (d) of O.7 Rule 11.,the procedural
averments in the plaint are irregularity touching
759 written
statement by germane; the pleas taken by the exercise of the
the contesting the defendant in the written jurisdiction by the
defendant is statement would be wholly trial court. So order
irrelevant and irrelevant at that stage. therefore suffers
unnecessary? from non-exercising
of the jurisdiction
vested in the court
as well as
procedural
irregularity.

TOPIC 12-
APPEARANCE
OF PARTIES
AND
CONSEQUENC
ES OF NON-
APPEARANCE
(ORDER
IX,RULES 6,7
AND 13)
16.Sangra O.9 The defendant and his Whether ex The SC observed as: The SC held that
m Singh v. Rule 6 counsel both fail to parte 1) Ex parte proceedings do not though the
appear before the proceedings mean that the defendant appellant cannot be
Election
Election Tribunal, as a means total cannot be allowed to appear at relegated to the
Tribunal, consequence of which all in the subsequent same position as he
AIR 1955 debarring of
the Judge permits ex proceedings of the Suit. has failed to show
the defendant
SC 425 parte proceedings. 2) If a party does not appear on good cause, he
The defendant and his to appear “the day to which the hearing cannot be denied
counsel appeared on before the of the suit is adjourned”, he his right to contest
fourth hearing and court on any cannot be stopped from and, be present on
insist that not only the subsequent participating in the proceedings subsequent dates.
order to proceed ex date or it simply because he did not
parte be reversed but merely means appear on the first or some
the defendant should that the other hearing.
also be permitted to defendant may 3) An omission to appear in
cross-examine appear on a response to summons carriers
witnesses of the no penalty in the strict sense.
future date,
plaintiff who were 4) No form or procedure should
however,
examined in his ever be permitted to exclude
absence. without any the presentation of a litigant’s
right to undo defence.
what prejudice 5) The proceedings that affect
has been their lives and properly should
caused to his not continue in their absence
interest in the and that they should not be
ex parte precluded from participating in
proceedings ? them.

17. Rajni O.9 1. In this case, Whether the 1. The court observed that The Supreme Court
Kumar v. the appeal was filed High Court a careful reading of Rule 4 did not find any
from the judgement committed shows that it empowers, under illegality in the order
Suresh
and order of the High jurisdictional special circumstances, the court under challenge to
Kumar Court of Delhi in the which passed an ex parte decree warrant
malhotra, error in
year 2001. In Delhi, under Order 37 to set aside the interference. The
declining to set
2003 (3) the appellant cum decree and grant one or both of court observed that
tenant had taken a aside the ex the following reliefs, if it seems liability in this case
SCALE 434
residential flat on rent parte decree reasonable to the court so to do does not arise out of
from the respondent on the and on such terms as the court a commercial
cum landlord for a application of thinks fit: (i) to stay or set aside transaction;
period of nine months the appellant execution, and (ii) to give leave therefore, the court
under an agreement under Rule 4 to the defendant (a) to appear has reduced the
of lease in writing. of Order 37, on to the summons, and (b) to rate of interest.
After the expiry of the the ground defend the suit. Hence, the Supreme
tenancy, she that he failed Court made some
continued to occupy modifications in the
to disclose
the said premises as facts sufficient 2. The expression ‘special trial court’s
tenant for a total of to entitle him circumstances’ is not defined in judgment and
around four years. It to defend the C.P.C. nor is it capable of dismissed the
was alleged that the suit? any precise definition by the appeal.
appellant did not pay court because problems of
• In an
the electricity and human beings are so varied and
application
water consumption complex. In its ordinary
charges for the said under Order dictionary meaning it connotes
period. 37, Rule 4, the something exceptional in
2. The court has to character,
respondent filed a determine the extraordinary, significant,
case under Order 36 question, on uncommon. It is an antonym of
of CPC in Civil court the facts of common, ordinary and general.
for the recovery of each case, as It is neither practicable nor
electricity and water to whether advisable to enumerate such
consumption charges circumstances circumstances. Non-service of
for the period. The summons will undoubtedly be a
pleaded are so
civil court noted the special circumstances.
unusual or
fact that the summons 3. In this case, though
were sent via extraordinary appellant has shown sufficient
registered post to the as to justify cause for his absence on the
appellant, proceeded putting the date of passing ex parte decree,
with the case and clock back by he failed to disclose facts which
decreed the suit ex setting aside would entitle him to defend the
parte. the decree; to case. The respondent was right
3. The appellant, grant further in his submission that in the
however, filed relief in regard application under Rule 4 of
application under Rule to post-decree Order 37, the appellant did not
4 of Order 37 C.P.C. in say a word about any amount
matters,
the trial Court to set being in deposit with the
namely,
aside the ex parte respondent or that the suit was
decree. The staying or not maintainable under Order
application was setting aside 37. From a perusal of the order
dismissed as no the execution under challenge, it appears to us
special circumstances and also in that the High Court was right in
were stated in the regard to pre accepting existence of special
petition both in record decree matters circumstances justifying his not
to there being viz. to give seeking leave of the court to
illegality in deeming leave to the defend, but in declining to grant
service of summons defendant to relief since he had mentioned
for judgment on the no circumstances justifying
appear to the
appellant as well facts any defence.
summons and
sufficient to entitle 4. In an application under
him to defend the to defend the Order 9 Rule 11, if a defendant
suit. Aggrieved by the suit. is set ex parte and that order
order of the trial is set aside, he would be entitled
court, the appellant to participate in the proceedings
appealed in the High from the stage he was set ex
Court, which was also parte. But an application under
dismissed in the year Order 9 Rule 13 could be filed
2001. on any of the grounds
4. The mentioned thereunder only
appellant’s counsel after a decree is passed ex parte
contended that there against defendant. If the court is
was no proof or satisfied that (1) summons was
record to show that not duly served, or (2) he was
any notice by prevented by sufficient cause
registered post with from appearing when the suit
acknowledgement was called for hearing, it has to
due was issued to the make an order setting aside the
appellant by the decree against him on such
respondent who had terms as to cost or payment into
taken the notice from court or otherwise as it thinks fit
the court but did not and thereafter on the day fixed
file any proof of for hearing by court, the suit
issuing the notice to would proceed as if no ex parte
the appellant, decree had been passed.
therefore, there was 5. The Supreme Court
special reason for the observed that Rule 4 of Order 37
appellant not to is different from Rule 13 of
appear in response to Order 9. The court observed
the summons for that Rule 4 of Order 37
judgment. specifically provides for setting
5. The aside decree, therefore,
respondent submitted provisions of Rule 13 of Order 9
that nowhere in her will not apply to a suit filed
application had the under Order 37. In this case, an
appellant stated application under Rule 4 of
anything about her Order 37 is filed to set aside a
defence to the suit decree and it is not enough for
and therefore the the defendant to show special
order under challenge circumstances which prevented
was rightly passed by him from appearing or applying
the courts below. for leave to defend, he has also
to show by affidavit or
otherwise, facts which would
entitle him leave to defend the
suit. It was also observed that in
a suit under Order 37, the
procedure for appearance of
defendant is governed by
provisions of Rule 3 thereof.
18. Bhanu O.9 The remedies When an application under O.9 The impugned
Kumar available to a Rule 13 is dismissed the judgement is set
defendant in defendant can only avail a aside and the case
Jain v.
remedy available there against remitted to the HC
Archana the event of an viz. to prefer an appeal in terms for consideration of
Kumar, ex parte of O.43 Rule 1 of the Code. Once the case of the
decree being such an appeal dismissed, the parties on merit of
AIR 2005
passed against appellant cannot raise the same the matter.
SC 626 contention in the first appeal. If
him in terms of
it be held that such a contention
O9 Rule 13 and
can be raised both in the first
the extent and appeal as also in the
limitation proceedings arising from an
thereof is in application under O 9 Rule 13, it
question. may lead to conflict of decisions
which is not contemplated in
law.
TOPIC-13
SUMMARY
PROCEDURE
(O.37,RULES 1-
4)
19. O.37 The issue in The test is to see whether the
Santosh this case defence raises a real issue and
related to not a sham one, if the facts
Kumar v.
leave to allegedly by the defendants are
Bhai Mool established, there would be a
Singh, AIR defend the suit
good or even a plausible
under O.37,
1958 SC defence on those facts.
R.3, C.P.C.
321
20. M/s O.37 The Plaintiff, a Any decision on the question The SC held that the
Mechalec partnership firm, filed that the defences could be order passed by the
” a suit for the recovery honest and bona fide, even trial court was
Engineers of certain amount on before evidence has been led by correct and the high
and the strength of a the two sides, is generally court wrongly
Manufatu cheque drawn by the hazardous. interfered with it. In
rers v. defendant which in other words, an
Basic presentation, was In Kiranmoyee Dassi v. unconditional leave
dishonoured. Chatterjee (AIR 1949 Cal 479), to defend to be
Equipmen
The suit was filed The Calcatta HC has laid down granted to the
t under O.37 so that the the following principles relating defendant.
Corporati defendant had to to suits of summary nature-
on, AIR apply for leave to
1977 SC defend. This leave was 1)If the defendant satisfied the
577 granted court that he has a good
unconditionally by the defence to claim on its merits,
trial court. However the plaintiff is not entitled to
“Priciples
the HC found that leave to sign judgement and
were laid
defences were not the defendant is entitled to
down in this
bona fide and thus set unconditional leave to defend.
case for
aside the order of the
granting trial court. Now 2)-If the defendant raises “a
leave to matter came before triable issue” he is entitled to
defend SC. unconditional leave to defend.

3)-If the defendant has no


defence or the defence set up is
illusory or sham or practically
moonshine, then ordinarily the
plaintiff in entitled to sign
judgment and defendant is not
entitled to leave to defend.

21. ONGC O.37 The appellant entered Whether leave In the absence of a plea relating When, in fact, there
Ltd. V. into a contract with a to defend to fraud, much less of a finding is no defence for suit
consortium of M/s. unconditionally thereto, we find that the High filed, merely to rely
State
Saipem was to be Court could not have stated that upon an injunction
Bank of SPA/Snamprogetti of granted to the the defence raised by the granted or obtained
India, AIR Italy for construction defendant or respondent Bank on the grounds in their favour does
2000 SC of a system of not? set forth earlier is sufficient to not carry the case of
2548 undersea pipelines. hold that unconditional leave the respondent Bank
The contract provided should be granted to defend the any further.
for liquidated suit. Therefore, in our
damages if the view, the High Court
contractor failed to plainly erred in
complete the entire having granted leave
works or any part to defend
thereof before the unconditionally.
respective scheduled
completion date. The
contractor was
obliged to furnish a
‘bank guarantee to
cover liquidated
damages.’ In case the
contractore fails to
provide the guarantee
for liquidated
damages within the
time stipulated
therein, the appellants
shall be entitled to
encash the
performance
guarantee. Inc
compliance with this
requirement, the
contractor had
furnished a bank
guarantee from the
State Bank of India
(SBI), Overseas
Branch, Bombat, to
cover the liquidated
damages claim.
Contractor as well as
the Bank not having
honoured the bank
guarantee, the
apellant asked the
respondent bank to
vredit the said
guarantee along with
the interest. On Dec 3,
1993 the respondent
Bank stated that they
have issued the
guarantee in favour of
ONGC against the
‘counter guarantee’ of
the Italian Bank
Credito, Milan and the
contractor obtained
an order of injunction
from an Italian Court
restraining Credito
italiano from making
any payment to the
respondent Bank
under the counter
guarantee. The high
court by order granted
unconditional leave to
defend the suit
TOPIC-14
TEMPORARY
INJUNCTIONS
AND
INTERLOCUTO
RY ORDERS
(O.39, RULES
1-5)
22. O.39 Whether the The Sc observed as follows: The SC held that it
Manohar Court could not can grant temporary
exercise its injunction in
Lal v. Seth inherent powers 1)- It is well settled that the circumstances not
Hira Lal when there provisions of code are not covered under O.39.
were specific exhaustive.
AIR 1962
provisions in the 2)- No party has a right to insist
SC 527 C.P.C for on the court’s exercising
issuance of inherent jurisdiction and the
injunctions viz. court exercises it only when it
Sec. 94 and consider it absolutely necessary
Order 39. for the ends of justice. The
powers are to be exercised in
exceptional circumstances for
which the code lays down no
procedure.
3)-There is no such expression
in Sec.94 which expressly
prohibits the issue of temporary
injunction in circumstances not
covered by O.39.
4)-S.151 does not control or
limit the inherent power of the
court.

23. Dalpat O.39 The appellant had Whether HC The SC observed that grant of However, SC
Kaur v. entered into an was right in injunction is a discretionary observed that HC
agreement with the granting ad- relief. One has to satisfy the without averting
Prahlad respondent to interim court for getting it on following to any material
Singh, AIR purchase the house of points:-
1993 SC injunction to evidence like any
respondent and also (1) There is serious
the act of damage,any
276 paid some advance disputed question to be triedin
but he could not get respondent ? the suit and that on facts before alienation made
the possession. Then Order 39 rule the court, there is probability of etc held that
appellant filed a suit 1(c) – his being entitled to the relief balance of
for specific Injunction may asked for by the convenience lies in
performance which be granted plaintiff/defendant. favour of granting
was decreed ex-parte where in a suit (2) Court’s interference is injunction , was
and sale deed was , it is proved by necessary to protect the party totally wrong.So
executed by the court. the affidavit or from the species of injury or appeal was
Subsequently, otherwise that damage would ensue before the allowed and order
respondent’s wife legal rights are established at
the defendant of HC was set
filed a suit against trial
threatens to aside and that of
appellant and sought (3) That the comparative
temporary injunction dispossess the hardship/mischief/inconvenienc trial court was
against dispossession. plaintiff or e which is likely to occur will be confirmed.
This was rejected by otherwise more if injunction is not granted
the court. This order cause injury to rather than on being granted.
of lower court was plaintiff in Therefore, the plaintiff will have
confirmed by HC. relation to any to prove that there is a prima-
Then appellant filed facie case in his favour which
an execution petition property in the needs adjudication at trial for
which was allowed by suit. getting injunction. But court
the court despite will have to be made satisfied
opposition by that non interference by the
respondent. Then, court will result in irreparable
sons of petitioner filed injury to the party seeking relief
suit against this as and there is no other way
they called this remedy available to the party
property as joint except one to grant injunction
property and asked and he needs protection of the
for division of the court against dispossession.
property and Besides, Prima facie case is not
requested for interim to confused with prima-facie
injunction, which was title, which has to be established
rejected by both on evidence in trial.
lower court and HC. The irreparable loss, that is likely
Now the respondent to be caused to be such that it
filed fourth suit can’t be compensated by way of
stating that appellant damages.
was his counsel and The other condition that is to be
he had played fraud satisfied that “the balance of
with him and sought convenience” must be in favour
interim injunction of granting injunction. The
from dispossession. court must exercise sound
The trial court judicial discretion to find the
rejected the amount of substantial mischief
application but HC or injury which is likely to be
allowed the caused to the parties.
application and The phrases “prima-facie case”,
granted interim “balance of convenience” and
injunction restraining “irreparable loss” are words of
the appellants from substantial width and elasticity
taking possession. So, to meet the various situations
this appeal in SC. and circumstances but here
discretion is to be exercised very
judiciously to meet the ends of
justice.
Injunction can be granted If it’s
shown that fraud has been
perpetrated even if the matter
has been decreed otherwise
otherwise also but before
granting the injunction court will
have to be very circumspect and
must look to the conduct of the
party and whether plaintiff can
be adequately compensated if
injunction is refused.
PART B:
LIMITATION
TOPIC 1:
SECTION 3-5
24. Section A motorcar i) At what the Court observed that if a Plaintiff’s action
R.B.Polici 3 belonging to RB cause of person is not traceable, it barred by
es At Policies (Plaintiff) action is said does not mean that he is limitation Act
Lloyd’s v. had stolen by to accrue? not in existence and cannot after expiry of 6
Butler some unknown ii)Whether be sued. The cause of years from the
(1949) 2 persons on Plaintiff’s action accrued to the date of accrual of
All ER 226 June,1940. In action is Plaintiff against the thieves original cause of
January,1947, they barred under as soon as the motorcar action.
found the car in Limitation was stolen. No cause of
possession of Act,1939. action will lie against them
Defendant. During after six years. Limitation
the previous 6 Act is based on public
years car had been policy that there should be
passed through an end to litigation. It is
several unfair to allow dormant
intermediate claims handing over
purchases before defendants for an
being passed to indefinite period and they
the Defendant. should be protected from
Now, Plaintiff sued stale demands. The
the Defendant for principle is that those who
wrongful sleep on their claims
detention of car. should not be assisted by
the courts in recovery of
their property.

25. Union Sec. 3, Respondents were Whether Appellant placed reliance Ratio of PK Kutty
of India v. Art. transporting goods period during on decision of court in PK case overruled,
West 58 through Railways which the Kutty Anuja Raja v S/o the period of
Coast and (Appellant- matter was Kerela (1996) where it was limitation would
Paper 113 of respondent). In pending held that once the begin to run
Mills Ltd. the Feb,1964, freight before limitation period starts from date of
AIR 2004 Limita rates were Appellate running, it runs its full passing the
SC 1596 tion increased sharply. Court would course until it is appellate decree
Act. Challenging the included or interrupted by an order of and not from
unreasonable levy excluded in the court. The pendency of date of passing
of Respondent computing the appeal does not of Original
approach Railway the period of amount to suspend the decree.
Rate Tribunal. limitation operation of running of
Tribunal by a limitation unless the
judgement dated operation of judgement is
18.04.1966 suspended by this court.
declared the said It was contended that said
levy unjust, suits were barred by
subsequent to limitation, as the cause of
which appellants action for filing the same
filed an application arose immediately after
for grant of special the judgement was passed
leave before SC. by the Tribunal on 8.4.1966
Pending decision and thus in terms of Art.58
SCourt passed a they were require to be
limited interim filed within a period of
order. Later Three years from the said
respondents filed date (when right to sue
Two suits on first accrued) as despite
Dec,1972 and the fact that SLP was
April,1974 for preferred there against, no
recovery of the stay had been granted.
excess amount of Apex Court observed that
freight illegally in KP Kutty case court
realized by failed to take into
appellant consideration that once an
appeal is filed before this
Court and the same is
entertained the judgement
of the HC or the Tribunal is
in jeopardy. The subject-
matter of dispute unless
determined by the last
Court cannot be said to
have attained finality and
grant of stay of operation
of the judgement may not
be of much relevance once
this court grants SLP and
decides to hear the matter
on merit.

26. Section In this case the Whether The court observed that The appellant
Punjab 3 appellant bank Bank is the rules of limitation are bank did not act
National gave a loan of entitled to not meant to destroy the in violation of
Bank v. Rs.15000/- to one appropriate right of parties. Sec.3 only any law , in
Surendra Mr. SN Dubey on the debt due bars the remedy , but does terms of the
Prasad 5th May,1984 and even when not destroy the right which contract the
Sinha, AIR the respondent debt become the remedy relates to. The bank is entitled
1992 SC and his wife stood time-barred. right to the debt continues to appropriate
1815 as guarantors, to exist notwithstanding the debt due out
executive security the remedy is barred by of security (FDR)
bond and FD the limitation. Only in its custody.
receipts of Rs. exception in which the
24000/-on that remedy also becomes
behalf. The barred by the limitation is
principal debtor that the right itself is
committed default destroyed.
in payment of
debt. On maturity,
the appellant
adjusted the sum
due from the FDs
on Dec,1988.
Respondent
alleged that debt
become barred by
limitation as on
May,1987. The
liability of the
respondent being
Coextensive with
that of principal
debtor, his liability
also stood
extinguished on
May,1987.
27. Section In this case Court i)What Court held that Section 5 Delay was
Collector, 5 considered the approach was enacted in order to accordingly
“Suffici
Land ent question of the courts should enable the court to do condoned, the
Acquisitio Cause” limitation in an adopt while substantial justice to the order was set
n, appeal preferred dealing with parties by disposing of aside.
Anantnag by the State arising application matters on merits. It laid
v. Katiji, out of a decision for down guidelines for
AIR 1987 HC enhancing condonation application of ‘sufficient
SC 1353 compensation in of delay. cause’ principle. The
respect of ii)Whether expression "sufficient
acquisition of same cause is of wide amplitude
lands for public standard of to enable the courts to
purpose and ‘Sufficient apply the law in a
rejecting an cause’ test be meaningful manner which
application for applied to all subserves the ends of the
condonation of litigants justice-that being the life-
delay. regardless of purpose for the existence
their of the institution of courts.
personality This Court reiterated that
including the the expression "every day's
State. delay must be explained"
does not mean that a
pedantic approach should
be made. The doctrine
must be applied in a
rational common sense
pragmatic manner. When
substantial justice and
technical considerations
are pitted against each
other, cause of substantial
justice deserves to be
preferred for the other side
cannot claim to have
vested right in injustice
being done because of a
non-deliberate delay.
There is no presumption
that delay is occasion
deliberately. Refusing to
condone delay can result in
a meritorious matter being
thrown out at the very
threshold and cause of
justice being defeated. As
against this when delay is
condoned the highest that
can happen is that a cause
would be decided on
merits after hearing the
parties.
The doctrine of
equality before law
demands that all litigants,
including the State as a
litigant, are accorded the
same treatment and the
law is administered in an
evenhanded manner rather
than step-motherly
treatment. Impersonal
machinery, inherited
bureaucracy (slow moving)
is difficult to approve. The
State which represent
collective cause of the
community, does not
deserve a litigant-non-grata
status. The courts,
therefore, have to be
informed with the spirit
and philosophy of the
provision

28. State Section In an incident of Correctness That discretion given by In view of he


of 5
shoot-out and of the Sec. 5 should receive a factual
Nagaland death, a judgement liberal construction (India background,
v. Lipok judgment of rendered by Insurance Co.Ltd V Shanti and legal
AO (2005) acquittal was Guwahati Misra). What principles, delay
3 SCC 752
passed Addl. Dy HC, Kohima constitutes sufficient of 57 days
Commissioner. cause cannot be laid condoned & HC
As there was down by hard and fast order set aside.
delay in making rules. The background
the application facts involved assume
for grant of importance like whether
leave, application appellant acted with
for condonation reasonable diligence in
of delay was filed prosecuting the appeal,
but rejected by unless want of bona fides
Guwahati HC of such inaction or
observing that negligence as to deprive
merely that a party from protection
inspite of of sec 5 is proved, the
instructions application must not be
appeal could not thrown out and delay
be filed and that cannot be refused to be
records were condoned (brij Indar
missing was not a Singh V Kanshi Ram) .
valid ground. Condonation of delay is a
question of fact
dependent upon the
facts and circumstances
of the particular case
(S/o Kerela v EK
Kuriyipe). In OP
Kathpalia v Lakhmir
Singh, SC held that if the
refusal to condon the day
results in grave
miscarriage of justice, it
would be a ground to
condon the delay. In
litigations where Govt.
is a party, there is yet
another aspect which
perhaps cannot be
ignored (redtop, slow
decision making), if
appeals brought by Govt.
are lost for such defaults,
no person is individually
affected but in ultimate
analysis public interest
suffers. However, courts
should decide the
matters on merit unless
the case s hopelessly
without merit. No
separate standards to
determine the cause laid
by the State vis-à-vis
private litigant could be
laid to prove strict
standards of sufficient
cause.

TOPIC -2 (SEC.
12,17-19,21)
29. The Section An appeal filed by the CAN THE TIME S.12(2) shall apply for Thus it was held
Commissi 12 respondent against an TAKEN BY THE determining any period of that the high court
“Time order of the Sales Tax RESPONDENT IN limitation for any purpose was correct in its
oner of
Requisi Officer was disposed OBTAINING prescribed by any local or order in excluding
Sales Tax, te” off by the Additional ANOTHER COPY special law insofar as they are the time period for
U.P v. M/s Commissioner, Sales OF THE ORDER not expressly excluded by such obtaining another
Madan Lal Tax, Bareilly. A copy of BE EXCLUDED special or local law. The UP Sales copy of the order
das & the appellate order WHILE Tax Act nowhere expressly bars from the
was served to the COMPUTING the application of s12(2), and computation of the
Sons
respondent. The LIMITATION thus, it shall apply in the period of limitation
Bareilly, respondent lost the PERIOD, WHEN following case.
AIR 1977 copy and applied to ONE COPY HAD The respondent was not
SC 523 obtain another copy. ALREADY BEEN required to file the copy of the
After receiving the SERVED UPON order with the revision petition.
copy, he filed for HIM? But this cannot be a ground for
revision before the non application of s12(2), as
judge, more than a nowhere does the section say
year after the that the period for obtaining the
judgement. S 10 of the copy will be excluded only if
UP Sales Tax Act such a copy is required to be
prescribes the period filed along with the revision
of limitation as one petition. It is not permissible to
year from date of insert such a proviso in the
service of the order, section when the legislature has
but on proof of not inserted it. Also, the
sufficient cause, the respondent would not have
revising authority may been in a position to decide
entertain an whether to file for revision or
application within a not and if so, on what grounds,
further period of six without a copy of the order.
months. The A copy of the order was served
respondent relied on s upon the respondent, and it was
12(2) of the Limitation contended by the petitioner
Act, and said he was that filing for another copy, as
entitled to exclude the such, was not necessary. It is
time spent in found that the copy served upon
obtaining a copy of the respondent was lost by him,
the appellate order which necessitated the filing for
while computing another copy.
period of limitation.
The high court
decided in favour of
the respondent. The
high court’s decision
was challenged.

30. State Section The respondents were WHAT IS THE The expression time requisite The supreme court
of U.P v. 12(2) tried for various PROPER cannot be understood to be the thus excluded the
offences. The Sessions INTERPRETATIO time absolutely necessary for whole period as
Maharaj judge acquitted them. N OF obtaining the copy of the order. time requisite for
Narain, The state went up in LEGISLATURE S 12(2 )permits the appellant to obtaining a copy of
AIR 1968 appeal against the FOR deduct the time taken for the order under S
SC 960 order of the acquittal. CALCULATING obtaining a copy of the order 12(2) and held the
This appeal was ‘TIME from the limitation time in filing appeal within time.
dismissed as being REQUISITE’ FOR the appeal, but lays no
barred by application RECEIVING obligation on the appellant to be
of limitation, as the COPY OF prompt in his application for a
period of limitation ORDER? copy of the order. There is no
for an appeal from an justification for restricting the
order from an order of scope of the provision.
acquittal is three If the appellate courts are
months from the date required to find out in every
of the order. The appeal filed before them the
appellants (State) minimum time required for
appealed against the obtaining a copy of the order
correctness of the appealed from, it would be
order to the Supreme unworkable. This would create a
Court. The appellants great deal of confusion and
contended that the enquiries into the alleged delay
appeal was within not of the copies provided with
time as the ‘time the memorandum of appeal, but
requisite’ for of other copies which the
obtaining a copy of appellant might have got and
the order is excluded used for other purposes with
from the period of which the court has nothing to
limitation. The do.
appellants obtained ‘Time requisite for obtaining a
three copies of the copy of the decree’ mean the
order obtained time beyond the party’s control
against, and filed that occupied in obtaining the copy
copy of the order with which is filed with the
the memorandum of memorandum of appeal and not
appeal which took the an ideal lesser period which
maximum time for its might have been occupied if the
preparation. The high application for the copy had
court of Allahabad been filed on some other date.
had ruled in favour of
the respondents.
31. Section The writ petitions Whether, and The court observed that the M.P High Court in
Mahabir 17. challenging the if so, which money realized was under a Surajdin v. State of
effect government’s right to provision of mistake and without the M.P declared the
Kishore v.
of charge 7 ½ percent the Limitation authority of law. The appellant collection of 7 ½
State of fraud were pending in the also while paying suffered from percent. Illegal and
M.P.,AIR Act will apply
or M.P High Court , the the same mistake. that decision was
to such a suit?
1990 SC mistak Government reported in 1960
313 e announced that it The Trial court taking the view MPLJ 39, the
would continue to that Art. 62 and 96 of the first government was
charge it. The schedule of the Limitation act still charging it
Appellants thus paid were applicable and the period saying that the
for the above of limitation would began to run matter was under
contracts a total extra from the dates the payments consideration of the
sum of Rs.54,606. were made to the govt. held Govt. The Final
The suit was for that suit to be barred by decision of the govt.
refund of money paid limitation and dismissed it. In letter dated 17
under mistake of law. Appeal H.C applying A.113 r/w October, 1961 was
sec.17 and not A.24 of the purely an internal
schedule to the Limitation Act communication of
was applicable and held that the the Govt. copy
limitation began to run from whereof was never
October 17, 1961 on which date communicated to
the govt. decided to charge the appellants or
extra 7 ½ percent. other liquor
contractors. There
could be therefore,
be no question of
the limitation
starting from that
date.
The Judgment of the
High Court is set
aside.
32. Section The appellants Whether the A valid oral mortgage comes Period of Limitation
Sampuran 18 – purchased the suit suit for into existence on the very day of would start from the
Effect property in the year redemption is its execution. So the suit is time very date the valid
Singh v.
of 1959 from the original barred by barred.Under sec.80, if the mortgage is said to
Niranjan ackno mortgagor, by limitation has already expired, it have been executed
Kaur time?
wledge registered sale deed. would not revive. It is only and hence the
(smt.) AIR ment Whereas on 11-1- during subsistence of a period of period of limitation
1999 SC 1960 the original limitation such document is of 60 years would
1047 mortgagee sold his executed that the limitation start from the very
right by a registered would be revived afresh from date of oral
deed to the the date of the mortgage i.e March
respondents, who acknowledgement. In the 1893.
acknowledged the present case, there is neither
existence of mortgage any deed nor document of
in question.In 1980, mortgage. Mortgage could be
appellants filed the redeemed at any time within 60
present suit for years from the date of
possession by way of mortgage.
redemption of the suit
land as against
respondents. The
appellants contended
that since there is
acknowledgement by
mortgage on 11-1-
1960, a fresh
limitation starts from
this date, hence, the
suit is within
limitation.
TOPIC-4

34. State Article The Plaintiff’s services Whether suit The Statute of limitation was The aggrieved party
of Punjab 113 of were terminated for for such relief intended to provide a time limit must approach the
C.P.C unauthorised absence is not for all suits conceivable. Sec. 3 court within the
v. Gurdev
without an enquiry. governed by of the Limitation Act provides prescribed period of
Singh He instituted the suit that a suit, appeal or application limitation. If the
(1991) 4 any provisions
for declaration that instituted after the prescribed statutory time
of the
SCC 1 the termination order “period of limitation” must expires the court
was against the Limitation Act, subject to the provisions of cannot give the
principles of natural 1963? Sections 4 to 24 be dismissed declaration sought
justice, terms and although limitation has not been for.
conditions of set up as a defence.
employment. The trial If the suit is not covered by any
court dismissed the of the specific articles
suit on limitation. But prescribing a period of So the SC set aside
on appeal additional limitation, it must fall within the the the judgment
District Judge decreed residuary article.A.113 is a and decree of the
the suit and held that residuary article for cases not High Court.
no limitation is covered by any other provisions
prescribed for in the act. It prescribes a period
challenging an illegal of 3 years when the right to sue
order. Since the order accrues. The Words “right to
of termination is bad, sue” ordinarily mean the right to
the suit is not barred seek relief by means of legal
by limitation, HC proceedings.
agreed with itl.
35. Ajaib Article The services of the Whether It is not the function of the court The provisions of
Singh v. 137 of appellant workman Limitation Act, to prescribe the limitation Articles 137 of the
C.P.C were terminated by 1963 will apply where the legislature in its schedule to the
Sirhind
the respondent to Industrial wisdom had thought it fit not to Limitation Act, 1963
Cooprativ management without prescribe any period. The Courts are not applicable to
e Dispute Act,
compliance of the admittedly interpret the law and the proceedings
1947?
Marketing mandatory provisions do not make laws. Personal under the Industrial
—cum- of the Industrial views of the judges presiding Dispute Act and that
Dispute Act, 1947. The over the court cannot be the relief under it
Processin
Labour court directed stretched to authorize them to cannot be denied to
g Service restatement of the interpret law in such a manner the workman
Society workman. The Single which would amount to merely on the
Ltd., AIR Judge of the HC held legislation intentionally left over ground of delay.
1996 SC that no relief to the by the legislature.
1351 workman as filed a
case after a prolonged
delay, devision bench
also upheld it.

S-ar putea să vă placă și