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Plaintiff sued for

Whether the


If there is an issue which had to be settled, decided or dealt with by the competent authority under the Tenancy Act, the jurisdiction of the



specific performance of a contract for sale of agricultural land in the civil court and defendant appeared and raised a contention in Sec 63 of the Tenancy Act the plaintiff being not an agriculturist, he is barred from purchasing the land. Such an issue being within the exclusive jurisdiction of the Mamlatadar (competent authority set up under the Tenancy Act).

plaintiff is an agriculturist or not, would the civil court have jurisdiction to decide the issue or the Civil Court would have to refer the issue under Sec. 85-A of the Tenancy Act to the authority constituted under the Act, viz. Mamlatdar.

There can be a civil suit properly constituted which the civil court will have jurisdiction to entertain but therein an issue may arise upon a contest when contentions are raised by the party against whom the civil suit

Shinde v.





(AIR 1979


filed. Upon such contest,

Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act. Therefore court overruled the decision of the High Court, upholding the jurisdiction of the Civil court to deal with the issue instead of referring it to the Mamlatdar.

SC 653)

issues will have to be determined to finally dispose of the suit. If any such issue arise which is required to be settled, decided or dealt with by the competent authority under the Tenancy Act, even if it arises in civil suit, the jurisdiction of the Civil Court to settle, decide and deal with the same would be barred by the provision


contained in Sec. 85 and the Civil Court will have to take recourse to the provision contained in Sec. 85-A for reference of the issue to the competent authority under the Tenancy Act.

The court further observed that


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,


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


Bank filed Summary Suit in the Bombay High Court under Order 37 of the Code against the Federation for obtaining a decree for Rs. 4,96,59,160 alleging that the said amount has become recoverable under a Letter of Credit. The Bank took out summons for judgment. The Federation appeared before the Court and took out Notice of Motion seeking stay of the summary suit on the ground that it has already instituted a suit being Suit against the Bank for recovery of Rs. 3,70,52,217.88 prior to the filing of the summary suit.

Whether the bar to proceed with trial of subsequently instituted suit, contained in Sec.10 is applicable to summary suit

The word “trial” in Section 10, in its widest sense would include all the proceedings from the stage of institution of a plaint in a civil case to the stage of final determination by a judgments and a decree of the Court. However, in view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word ‘trial’ in Sec. 10 is not used in its widest sense. Considering the objects of both the provisions i.e. Sec. 10 and O. 37, wider interpretation of the word “trial” is not called for. The word ‘trial’ in Sec. 10 in the context of summary suit cannot be interpreted to mean the entire proceedings starting with the institution of the suit by lodging a plaint. In a summary 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.

The bar to proceed with trial of subsequently instituted suit, contained in Sec. 10 is not applicable to summary suit filed under Order 37 of the CPC.

Bank v.

10- Res




tra State




Fed. Ltd.

(AIR 1998


SC 1952)

filed under Order 37 of the Code.



There was conflict of interest among co-

Whether earlier decision of the

The SC held that if following 4 principles were satisfied then it would operate as res- juducata- 1)-There must be a conflict of interest between the parties.

The SC held that since the four conditions were satisfied in the case and thus the

Ahmed v.

11- Res




plaintiffs. In the

court regarding


previous suit, Ishtaq

the title of the


Ahmed, K.Fatima,

Property in

Ali, AIR

en co

M.Ali (Co-plaintiffs) instituted a suit against the mortgagee, relating to shares of the latter two in mortgaged that suit it was decided that only Ishtaq Ahmed 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.

question would

2)-It is necessary to decide that conflict in order to give relief and determine the issue in the case. 3)-That such a conflict has been conclusively determined. 40)-The Co-defendants were necessary or proper parties in the former suit.

principle of res

1977 SC




operate as res- judicata in between the parties.

judicata has to operate.

4. State of U.P. v. Nawab Hussain


In this case, the petitioner was dismissed from service. He filed a writ petition on the ground of denial of opportunity of being heard and that the action taken against him was mala fide. After that dismissal of petition he filed another petition alleging that he was appointed by the Inspector General of Police and he was dismissed by the Deputy I.G. He alleged that the latter was not

Whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under Art. 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between the same parties.

The provisions of Sec. 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording a fair opportunity to the parties to prove their case by a Court competent to decide

it, will operate as res judicata in

The plea taken in the subsequent suit was an important plea which was within the knowledge of the petitioner when he filed the previous writ petition and this plea could well have been taken in the same petition.





(AIR 1977


SC 1680)





e Res


subsequent regular suit. It is not necessary that the court



deciding the matter formerly be


competent to decide the

subsequent suit or that the


empowered to dismiss him and therefore his order of dismissal was 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.


former proceeding and the subsequent suit have the same subject-matter.


5. C.A.


In the present case, the prayer in the writ petition is for the issuance of a writ of mandamus directing the respondent to restore the possession of the premises to the petitioner, a licensee. It is admitted fact that the petitioner has filed original suit for mandatory injunction of restoration of possession to him of the premises, which was dismissed and which is also the subject matter of the writ petition.

Whether O.2, R.2 applies to the writ petition or not?

The principle underlying O.2, R.2 being based upon public policy, a person who files a suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of same cause of action under O.2, R.2. The relinquishment of part of claim is not permissible and omission to sue for one of several reliefs is also prohibited. Likewise, the same person cannot be allowed to invoke the writ jurisdiction of this court for obtaining the very same reliefs.

If second suit is barred, a writ petition would equally be barred, public policy underlying O.2, R.2 is attracted with equal vigor in this situation also.


Rule 2.

an v.




Corpn. of


(AIR 2003

MAD 120)


Topic 6 :





Much before the expiry of contractual period, the

Whether the contruction of a document of title which is foundation of the rights of the parties raises a

a) Not disputed that this is a Question of law since what Apellent is challenging is the interpretation of some clauses of a document. But is this an SQOL ? If it is decided so, then per A 133(1), the HC was required to certify it so

As far as the merits of this Case are concerned, Cl 14 is clear. And sets out the precise sum to be claimed as damages. Once done, they must








respondent company




removed the



appellants as managing agent. The appellants filed a suit



uring Co.


in the Bombay High Court Claiming damages. The H.C decided in favour of the respondent company. The Appellants moved to SC by special leave.

question of law and the interpretation of such document raises a substantial question of Law ?

and so, in not giving the Certificate it was wrong.


Case, it was held that merely becasue an inference was to be drawn from a complicated Decree, no SQOL would arise. OTOH, in a Nagpur case it was held that an SQOL arises if it is important

between the parties and the case turns on that. SC

disagreed with both these views and agreed with that of Madras High Court ( R. Subba Rao v. N. Veeraja ) and set out the following principles of a SQOL

In an earlier Bombay

be deemed to exclude the right to claim an unascertained sum as damages. So, Cl 10 and 12 do not hold any more since the profit herein is not yet ascertained. Hence the decree

of the HC on this matter is held.

Ltd., AIR

1962 SC




It directly and


substantially affects the rights of the parties. It need not be a question of general



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



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


Substantial Question


Recommendation of Law commission in 1973 amended section 100 which made it compulsorily to formulate substantial question of law.


Setty v.


of Law





An unqualified right of first appeal may be necessary for




the satisfaction of the defeated


27 (NSC)

litigant but wide right of 2 nd 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 & co. v. Bimla Kumari,


Eviction notice to

Whether the


Jurisdiction of the


M/S Gill & Co on grounds of


The general rule is that

High Court in 2 nd Appeal is confined to the determination of substantial question of law and not to reverse the findings of fact.

107, R

tribunal was

an appellate court shall decide

ule 27


non-payment of

correct in

an appeal on the evidence led



rejecting the

by the parties before the lower Court and shall not admit additional evidence for the




(b)misuse ,

application for


XLI of


bona fide

production of


requirement as




residence for herself and members of her family ;




purpose of disposal of an appeal.

Evidently it is not a case where the lower Court had

improperly refused to admit evidence. It was never tendered.

Hence High Court

in 2 nd appeal cannot re- appreciate the evidence and


Likewise, it is not the

interfere with the findings of fact reached by the lower appellant court, unless of course, it can be shown that there was an error of law in arriving at it or that it was

case of the appellants that the additional evidence sought to be produced by them at the

appellate stage was not within their knowledge or that the same could not be produced after exercise of due diligence No such effort seems to have been made.

The only question which

based on no evidence at all or was arbitrary, unreasonable or perverse. The High Court was incompetent to re- assess the evidence afresh and it was bound by the decision of the Tribunal on questions of fact.

falls for consideration is whether the additional evidence was required by the Appellate

Court for enabling it to pronounce judgment or was there any other substantial cause for allowing the same.





9. Haridas


What is the scope of review under Section 114 read with Order XLVII of CPC.

In order to appreciate

When the aforesaid principles are applied to the background facts of the present case, the position is clear that the High Court had clearly fallen in error in accepting

Das v.


the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it may make such order thereon as it thinks fit.

Smt. Usha




2006 (3)



The parameters are

the prayer for review. First, the crucial question which according to the High Court was necessary to be adjudicated was the question whether the Title Suit No.

prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing on account of some mistake or error apparent on the face of the records or for any other sufficient reason.

rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict.

The former part of the

201 of 1985 was barred by the provisions of Order


Rule 2 CPC. This

question arose in

Title Suit No.1 of


and was

irrelevant so far as

Title Suit No.2 of


is concerned.

Additionally, the High Court erred in holding that no prayer for leave under Order II Rule 2 CPC was made in

This is amply evident

the plaint in Title Suit No.201 of 1985. The claim of oral agreement dated 19.8.1982 is mentioned in para 7 of the plaint, and at

the end of the plaint

from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such



has been noted

that right to institute suit for specific performance was reserved. That being

Where the order in

so the High Court has erroneously held about infraction of Order II Rule 2 CPC. This was not a case where Order II of Rule 2 CPC has any

question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.

A perusal of the Order

application. The order of the High Court is clearly contrary to law as laid down by this Court. The judgment of the High Court in review application is set aside. Consequently, judgment and order passed in the Second Appeal stand restored. Appeal is allowed with no order as to costs.

XLVII, Rule 1 show that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.

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






COURT (S.151)



The appellant had filed a suit for the declaration that he

was nominated Mahant of Moghal Juan Sangat which was dismissed by the trial judge. The appeal was decided in his favour on condition that he pay the deficient court fees, within the time specified by the court. Before the expiry of the period of three months,he had filed an application under section 148 and 149 read with section 151 CPC for extension of time

Whether the High court in the

circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment?

S.148 of the code, in terms, allows extension of time even if the original period fixed has expired, and S. 149 is equally liberal. A fortiori, these sections could be invoked by the applicant, when the time had not actually expired. Such procedural orders, as in this case to pay the court fees within the time fixed, though peremptory are in essence, in terrorem, so that dilatory litigants put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed.

the Apex court set aside the order of the High court not to enlarge the time, and held that the High court could have exercised its



149 &

Ram Das


v. Mahant


Das, AIR

1961 SC



powers first under S. 148 and then under s. 151, CPC.


was dismissed by the High court.






[O.VI,RULE 17]


Jai Jai


Manohar lal commenced an action against the defendant .The action was initiated in the name of “Jai Jai Ram Manohar Lal” which was the name in which the business was carried on.The plaintiff applied for leave to amend the

Whether there should be an amendment or not really turns upon whether the suit is brought is the name of a non- existent person or whether it is merely a misdescription

The plaintiff was carrying on business as commission agent in the name of “Jai Jai Ram Manohar Lal.” The Plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged. He says he sued on behalf of the family in the business name. There is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bonafide mistake, the court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

The name in which the action was instituted was merely a misdescription of original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in


Rule 17


Lal v.





Co., AIR

1969 SC



the name of the real plaintiff on the date on which it was originally instituted.

of existing persons.

The order passed by the Trial court in granting the amendment was clearly right, and the High court was in error in dismissing the suit on a technically wholly unrelated to the merits of the dispute.




Appellant-plaintiff m/s Ganesh Trading Co.,Karnal, had filed a suit through Shri jai Prakash, a partner of that firm, based on a promissory note. It was asserted that the suit was incompetent for want of registration of the


Procedural law is intended to facilitate and not to obstruct the course of substantive justice.

party cannot be refused relief merely because of some mistake, negligence,


The suit having been instituted by one of the partners of a

dissolved firm the mere specification of the capacity in which the suit was


Rule 17


Co. v.

Moji Ram,

AIR 1978

inadvertence or even infraction

SC 484


the rules of procedure.

filed could not change the character of the suit or the case. It made


firm and was struck by the provisions of s.69 of the Indian Partnership Act.The Plaintiff filed an amendment application wherein it was stated that the plaintiff had “inadvertenently omitted certain material facts which are not (now) necessary to incorporate in the plaint so as to enable the court to consider and decide the subject matter of the suit.”


no difference to the rest of the pleadings or to the cause of action. Indeed, the amendment only sought to give notice to the defendant of the facts which the plaintiff would and could have tried to prove in any case. This notice was being given, out of abundant caution, so that no technical objection may be taken that what was sought to be proved was outside the pleadings.




The plaintiff filed an application under O.6 Rule 17 seeking amendment of the plaint by making a prayer for declaring the judgement and decree passed in civil suit entitled Major Singh v. Balbir Kaur as null and void and ineffective against the rights of the plaintiff.

The Purpose of O.6 Rule 17 is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various high courts and Supreme court of India.

The amendment does not defeat any legal right allegedly having accrued to the opposite party and the delay in filing the petition for amendment can properly be compensated by costs.

Kaur v. Major Singh, AIR 1996 P & H 107

Rule 17


were laid

down while




Principles were laid down while dealing with application of amendment









The respondent- plaintiff filed a suit against the appellant defendant praying for the grant of mandatory and prohibitory injunction seeking eviction allegedly on the

The Purpose of O.6 Rule 17 is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines

The appellant- defendant is permitted to amend the written statement to the extent of incorporating the plea of his entitlement to the


Rule 17

Pillai v.



(2000) 1

SCC 712


ground of his being a license.


laid down by various high courts and Supreme court of India.

benefit of s.60(b) of 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.






RULE 11)




Whether an

O.7 Rule 11 makes it clear that the relevant facts which need to be looked into for deciding an application there under are the averments in the plaint. For the purpose of deciding an application under Clauses (a) and (d) of O.7 Rule 11.,the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

Therefore a direction to file the written statement without deciding the application under O.7 Rule 11 cannot but be procedural irregularity touching the exercise of the jurisdiction by the trial court. So order therefore suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity.


Rule 11


Bhai v.

under O.7 Rule 11 ought to decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary?

State of


tra, AIR

2003 SC







AND 13)



The defendant and his counsel both fail to appear before the Election Tribunal, as a consequence of which the Judge permits ex parte proceedings. The defendant and his counsel appeared on fourth hearing and insist that not only the order to proceed ex parte be reversed but the defendant should also be permitted to cross-examine witnesses of the plaintiff who were examined in his absence.

Whether ex parte proceedings means total debarring of the defendant to appear before the court on any subsequent date or it merely means that the defendant may appear on a future date, however, without any right to undo what prejudice has been caused to his interest in the ex parte proceedings ?

The SC observed as:

The SC held that though the appellant cannot be relegated to the same position as he has failed to show good cause, he cannot be denied his right to contest and, be present on subsequent dates.

m Singh v. Election Tribunal, AIR 1955 SC 425

Rule 6

1) Ex parte proceedings do not mean that the defendant cannot be allowed to appear at all in the subsequent proceedings of the Suit. 2) If a party does not appear on “the day to which the hearing of the suit is adjourned”, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. 3) An omission to appear in response to summons carriers no penalty in the strict sense. 4) No form or procedure should ever be permitted to exclude the presentation of a litigant’s defence. 5) The proceedings that affect their lives and properly should not continue in their absence and that they should not be precluded from participating in them.

17. Rajni



In this case,

Whether the High Court committed jurisdictional error in declining to set aside the ex parte decree on the application of the appellant under Rule 4 of Order 37, on the ground that he failed to disclose


The court observed that

The Supreme Court did not find any illegality in the order under challenge to warrant interference. The court observed that liability in this case does not arise out of a commercial transaction; therefore, the court has reduced the rate of interest. Hence, the Supreme Court made some modifications in the

Kumar v.

the appeal was filed from the judgement and order of the High Court of Delhi in the year 2001. In Delhi, the appellant cum

a careful reading of Rule 4 shows that it empowers, under special circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree and grant one or both of the following reliefs, if it seems reasonable to the court so to do and on such terms as the court thinks fit: (i) to stay or set aside execution, and (ii) to give leave to the defendant (a) to appear to the summons, and (b) to defend the suit.




2003 (3)


tenant had taken a residential flat on rent

from the respondent cum landlord for a period of nine months under an agreement of lease in writing. After the expiry of the tenancy, she continued to occupy

the said premises as tenant for a total of around four years. It was alleged that the appellant did not pay the electricity and water consumption charges for the said period.

facts sufficient to entitle him to defend the suit?


The expression ‘special

trial court’s

circumstances’ is not defined in

judgment and

C.P.C. nor is it capable of any precise definition by the

court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstances.


In this case, though

dismissed the


In an

application under Order 37, Rule 4, the



court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to

respondent filed a case under Order 36 of CPC in Civil court for the recovery of electricity and water consumption charges for the period. The civil court noted the fact that the summons were sent via registered post to the

appellant, proceeded with the case and decreed the suit ex parte.

appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right


The appellant,

grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters viz. to give leave to the

defendant to appear to the

however, filed application under Rule 4 of Order 37 C.P.C. in the trial Court to set aside the ex parte decree. The application was dismissed as no special circumstances were stated in the petition both in record to there being illegality in deeming service of summons for judgment on the appellant as well facts sufficient to entitle him to defend the suit. Aggrieved by the order of the trial court, the appellant appealed in the High

in his submission that in the application under Rule 4 of

Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order

under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.

summons and to defend the suit.


In an application under

Order 9 Rule 11, if a defendant is set ex parte and that order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex


Court, which was also dismissed in the year


parte. But an application under Order 9 Rule 13 could be filed on any of the grounds mentioned thereunder only after a decree is passed ex parte against defendant. If the court is satisfied that (1) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit was called for hearing, it has to make an order setting aside the decree against him on such terms as to cost or payment into

court or otherwise as it thinks fit and thereafter on the day fixed for hearing by court, the suit would proceed as if no ex parte decree had been passed.





appellant’s counsel contended that there was no proof or record to show that any notice by

registered post with acknowledgement due was issued to the appellant by the respondent who had taken the notice from the court but did not file any proof of issuing the notice to the appellant, therefore, there was special reason for the appellant not to appear in response to the summons for judgment.


The Supreme Court

observed that Rule 4 of Order 37


different from Rule 13 of

Order 9. The court observed that Rule 4 of Order 37 specifically provides for setting



respondent submitted that nowhere in her application had the appellant stated anything about her defence to the suit and therefore the order under challenge was rightly passed by the courts below.

aside decree, therefore, provisions of Rule 13 of Order 9

will not apply to a suit filed under Order 37. In this case, an application under Rule 4 of Order 37 is filed to set aside a decree and it is not enough for the defendant to show special circumstances which prevented him from appearing or applying 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


suit under Order 37, the

procedure for appearance of defendant is governed by provisions of Rule 3 thereof.

18. Bhanu



The remedies available to a defendant in

When an application under O.9 Rule 13 is dismissed the defendant can only avail a remedy available there against

The impugned judgement is set aside and the case remitted to the HC


Jain v.



the event of an ex parte decree being passed against him in terms of O9 Rule 13 and the extent and limitation thereof is in question.

viz. to prefer an appeal in terms of O.43 Rule 1 of the Code. Once such an appeal dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under O 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law.

for consideration of the case of the


AIR 2005

SC 626

parties on merit of the matter.






(O.37,RULES 1-





The issue in this case related to leave to defend the suit under O.37, R.3, C.P.C.

The test is to see whether the defence raises a real issue and not a sham one, if the facts allegedly by the defendants are established, there would be a good or even a plausible defence on those facts.



Kumar v.

Bhai Mool

Singh, AIR





20. M/s


The Plaintiff, a


Any decision on the question that the defences could be honest and bona fide, even before evidence has been led by the two sides, is generally hazardous.

The SC held that the order passed by the trial court was correct and the high court wrongly interfered with it. In other words, an unconditional leave to defend to be granted to the defendant.


partnership firm, filed

a suit for the recovery of certain amount on the strength of a cheque drawn by the defendant which in presentation, was dishonoured. The suit was filed under O.37 so that the defendant had to apply for leave to defend. This leave was granted unconditionally by the trial court. However the HC found that defences were not bona fide and thus set aside the order of the




rers v.



In Kiranmoyee Dassi v. Chatterjee (AIR 1949 Cal 479), The Calcatta HC has laid down the following principles relating to suits of summary nature-




on, AIR




1)If the defendant satisfied the court that he has a good defence to claim on its merits, the plaintiff is not entitled to leave to sign judgement and the defendant is entitled to unconditional leave to defend.


Priciples were laid down in this case for



trial court. Now matter came before SC.


2)-If the defendant raises “a triable issue” he is entitled to unconditional leave to defend.


leave to



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


The appellant entered into a contract with a consortium of M/s. Saipem SPA/Snamprogetti of Italy for construction of a system of



In the absence of a plea relating to fraud, much less of a finding thereto, we find that the High Court could not have stated that the defence raised by the respondent Bank on the grounds set forth earlier is sufficient to hold that unconditional leave should be granted to defend the suit.

When, in fact, there is no defence for suit filed, merely to rely upon an injunction granted or obtained in their favour does not carry the case of the respondent Bank any further. Therefore, in our view, the High Court plainly erred in having granted leave

Ltd. V.








Bank of




India, AIR



2000 SC



undersea pipelines. The contract provided for liquidated damages if the contractor failed to complete the entire works or any part thereof before the 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









(O.39, RULES





Whether the Court could not exercise its

The Sc observed as follows:

The SC held that it can grant temporary injunction in


Lal v. Seth Hira Lal AIR 1962 SC 527


inherent powers when there were specific provisions in the C.P.C for issuance of injunctions viz. Sec. 94 and Order 39.

1)- It is well settled that the provisions of code are not exhaustive. 2)- No party has a right to insist on the court’s exercising inherent jurisdiction and the court exercises it only when it consider it absolutely necessary 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.

circumstances not covered under O.39.

23. Dalpat


The appellant had entered into an agreement with the respondent to purchase the house of respondent and also

Whether HC was right in granting ad- interim injunction to the respondent ? Order 39 rule 1(c) Injunction may be granted where in a suit , it is proved by the affidavit or otherwise that the defendant threatens to dispossess the plaintiff or otherwise cause injury to plaintiff in relation to any

The SC observed that grant of injunction is a discretionary

However, SC observed that HC without averting to any material evidence like any act of damage,any alienation made etc held that balance of convenience lies in favour of granting injunction , was totally wrong.So appeal was allowed and order of HC was set aside and that of trial court was confirmed.

Kaur v.


relief. One has to satisfy the court for getting it on following


Singh, AIR

1993 SC


There is serious


paid some advance but he could not get the possession. Then appellant filed a suit for specific performance which was decreed ex-parte and sale deed was executed by the court. Subsequently, respondent’s wife filed a suit against appellant and sought temporary injunction against dispossession. This was rejected by the court. This order of lower court was confirmed by HC. Then appellant filed

disputed question to be triedin the suit and that on facts before the court, there is probability of his being entitled to the relief asked for by the



Court’s interference is

necessary to protect the party from the species of injury or

damage would ensue before the

legal rights are established at trial


That the comparative

hardship/mischief/inconvenienc e which is likely to occur will be more if injunction is not granted rather than on being granted.

Therefore, the plaintiff will have to prove that there is a prima- facie case in his favour which


an execution petition which was allowed by the court despite opposition by respondent. Then, sons of petitioner filed suit against this as they called this property as joint property and asked for division of the property and requested for interim injunction, which was rejected by both lower court and HC. Now the respondent filed fourth suit stating that appellant was his counsel and he had played fraud with him and sought interim injunction from dispossession. The trial court rejected the application but HC allowed the application and granted interim injunction restraining the appellants from taking possession. So, this appeal in SC.

property in the suit.

needs adjudication at trial for getting injunction. But court will have to be made satisfied that non interference by the court will result in irreparable injury to the party seeking relief and there is no other way remedy available to the party except one to grant injunction and he needs protection of the court against dispossession. Besides, Prima facie case is not to confused with prima-facie title, which has to be established on evidence in trial. The irreparable loss, that is likely to be caused to be such that it can’t be compensated by way of damages. The other condition that is to be satisfied that “the balance of convenience” must be in favour of granting injunction. The court must exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties. The phrases “prima-facie case”, “balance of convenience” and “irreparable lossare words of substantial width and elasticity to meet the various situations 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.











A motorcar

i) At what the

Court observed that if a person is not traceable, it does not mean that he is not in existence and cannot be sued. The cause of action accrued to the Plaintiff against the thieves as soon as the motorcar was stolen. No cause of action will lie against them after six years. Limitation Act is based on public policy that there should be an end to litigation. It is unfair to allow dormant claims handing over defendants for an indefinite period and they should be protected from stale demands. The principle is that those who sleep on their claims should not be assisted by the courts in recovery of their property.

Plaintiff’s action barred by limitation Act after expiry of 6 years from the date of accrual of original cause of action.

R.B.Polici es At Lloyd’s v. Butler (1949) 2 All ER 226


belonging to RB Policies (Plaintiff) had stolen by some unknown persons on June,1940. In January,1947, they found the car in possession of Defendant. During the previous 6 years car had been passed through several intermediate purchases before being passed to the Defendant. Now, Plaintiff sued the Defendant for wrongful detention of car.

cause of action is said to accrue? ii)Whether Plaintiff’s action is barred under Limitation



25. Union of India v. West Coast Paper Mills Ltd. AIR 2004 SC 1596

Sec. 3,

Respondents were


Appellant placed reliance on decision of court in PK Kutty Anuja Raja v S/o Kerela (1996) where it was held that once the limitation period starts running, it runs its full course until it is interrupted by an order of the court. The pendency of

Ratio of PK Kutty case overruled, the period of limitation would begin to run from date of passing the appellate decree and not from date of passing


transporting goods

period during


through Railways

which the



matter was

113 of

respondent). In Feb,1964, freight rates were increased sharply. Challenging the unreasonable levy







Court would



included or

excluded in

of Respondent approach Railway Rate Tribunal. Tribunal by a judgement dated


computing the period of limitation

the appeal does not amount to suspend the operation of running of limitation unless the operation of judgement is suspended by this court. It was contended that said suits were barred by limitation, as the cause of action for filing the same arose immediately after the judgement was passed by the Tribunal on 8.4.1966 and thus in terms of Art.58 they were require to be filed within a period of Three years from the said date (when right to sue first accrued) as despite the fact that SLP was preferred there against, no stay had been granted. Apex Court observed that in KP Kutty case court failed to take into 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

of Original


declared the said levy unjust, subsequent to which appellants filed an application for grant of special leave before SC. Pending decision SCourt passed a limited interim order. Later respondents filed Two suits on Dec,1972 and April,1974 for recovery of the excess amount of freight illegally realized by appellant


decides to hear the matter on merit.




In this case the


The court observed that the rules of limitation are not meant to destroy the right of parties. Sec.3 only bars the remedy , but does not destroy the right which the remedy relates to. The right to the debt continues to exist notwithstanding the remedy is barred by the limitation. Only exception in which the remedy also becomes barred by the limitation is that the right itself is destroyed.

The appellant bank did not act in violation of any law , in terms of the contract the bank is entitled



appellant bank gave a loan of Rs.15000/- to one Mr. SN Dubey on 5 th May,1984 and the respondent and his wife stood

Bank is entitled to appropriate the debt due even when debt become time-barred.


Bank v.



Sinha, AIR

1992 SC



as guarantors, executive security bond and FD receipts of Rs. 24000/-on that behalf. The principal debtor committed default 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


to appropriate the debt due out of security (FDR) in its custody.





In this case Court


Court held that Section 5 was enacted in order to

Delay was



considered the







question of the limitation in an appeal preferred by the State arising out of a decision HC enhancing compensation in respect of acquisition of lands for public purpose and rejecting an application for condonation of delay.

courts should adopt while dealing with application for condonation of delay. ii)Whether same standard of ‘Sufficient cause’ test be applied to all litigants regardless of their personality including the State.

enable the court to do substantial justice to the parties by disposing of matters on merits. It laid down guidelines for application of ‘sufficient cause’ principle. The expression "sufficient cause is of wide amplitude to enable the courts to apply the law in a meaningful manner which subserves the ends of the justice-that being the life- purpose for the existence of the institution of courts. This Court reiterated that the expression "every day's 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

condoned, the order was set aside.






v. Katiji,

AIR 1987

SC 1353


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 of Nagaland v. Lipok


In an incident of


That discretion given by Sec. 5 should receive a liberal construction (India Insurance Co.Ltd V Shanti Misra). What constitutes sufficient cause cannot be laid down by hard and fast

In view of he factual background, and legal principles, delay of 57 days condoned & HC order set aside.


shoot-out and death, a judgment of acquittal was passed Addl. Dy Commissioner. As there was

of the


rendered by


AO (2005) 3 SCC 752

HC, Kohima

delay in making the application for grant of leave, application for condonation of delay was filed but rejected by Guwahati HC observing that merely that inspite of instructions appeal could not be filed and that records were missing was not a valid ground.

rules. The background facts involved assume importance like whether appellant acted with reasonable diligence in prosecuting the appeal, unless want of bona fides of such inaction or negligence as to deprive


party from protection

of sec 5 is proved, the application must not be thrown out and delay cannot be refused to be condoned (brij Indar Singh V Kanshi Ram) . 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.


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.





29. The Commissi oner of Sales Tax, U.P v. M/s Madan Lal das & Sons Bareilly, AIR 1977 SC 523


An appeal filed by the respondent against an order of the Sales Tax Officer was disposed off by the Additional Commissioner, Sales Tax, Bareilly. A copy of the appellate order was served to the respondent. The respondent lost the copy and applied to obtain another copy. After receiving the copy, he filed for revision before the judge, more than a year after the judgement. S 10 of the UP Sales Tax Act prescribes the period of limitation as one year from date of service of the order,


S.12(2) shall apply for determining any period of limitation for any purpose prescribed by any local or special law insofar as they are not expressly excluded by such special or local law. The UP Sales Tax Act nowhere expressly bars the application of s12(2), and thus, it shall apply in the following case. The respondent was not required to file the copy of the order with the revision petition. But this cannot be a ground for non application of s12(2), as nowhere does the section say that the period for obtaining the copy will be excluded only if such a copy is required to be filed along with the revision petition. It is not permissible to insert such a proviso in the section when the legislature has

Thus it was held that the high court was correct in its order in excluding the time period for obtaining another copy of the order from the computation of the period of limitation






but on proof of sufficient cause, the revising authority may entertain an application within a further period of six months. The respondent relied on s 12(2) of the Limitation Act, and said he was entitled to exclude the time spent in obtaining a copy of the appellate order while computing period of limitation. The high court decided in favour of the respondent. The high court’s decision was challenged.


not inserted it. Also, the respondent would not have been in a position to decide whether to file for revision or


not and if so, on what grounds, without a copy of the order.


copy of the order was served

upon the respondent, and it was contended by the petitioner that filing for another copy, as such, was not necessary. It is found that the copy served upon the respondent was lost by him, which necessitated the filing for another copy.

30. State of U.P v. Maharaj Narain, AIR 1968 SC 960


The respondents were tried for various offences. The Sessions judge acquitted them. The state went up in appeal against the order of the acquittal. This appeal was dismissed as being barred by application of limitation, as the period of limitation for an appeal from an order from an order of acquittal is three months from the date of the order. The appellants (State) appealed against the correctness of the order to the Supreme Court. The appellants contended that the appeal was within time as the ‘time requisite’ for


The expression time requisite cannot be understood to be the

The supreme court thus excluded the whole period as time requisite for


time absolutely necessary for obtaining the copy of the order.


12(2 )permits the appellant to

obtaining a copy of the order under S 12(2) and held the appeal within time.

deduct the time taken for obtaining a copy of the order from the limitation time in filing the appeal, but lays no obligation on the appellant to be prompt in his application for a copy of the order. There is no justification for restricting the scope of the provision.



the appellate courts are


required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from, it would be unworkable. This would create a great deal of confusion and enquiries into the alleged delay

not of the copies provided with the memorandum of appeal, but of other copies which the


obtaining a copy of the order is excluded from the period of limitation. The appellants obtained three copies of the order obtained against, and filed that copy of the order with the memorandum of appeal which took the maximum time for its preparation. The high court of Allahabad had ruled in favour of the respondents.


appellant might have got and used for other purposes with which the court has nothing to do. ‘Time requisite for obtaining a copy of the decree’ mean the time beyond the party’s control occupied in obtaining the copy which is filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for the copy had been filed on some other date.




The writ petitions

Whether, and if so, which provision of the Limitation Act will apply to such a suit?

The court observed that the money realized was under a mistake and without the authority of law. The appellant also while paying suffered from the same mistake.

M.P High Court in Surajdin v. State of M.P declared the collection of 7 ½ percent. Illegal and that decision was reported in 1960 MPLJ 39, the government was still charging it saying that the matter was under consideration of the Govt. The Final decision of the govt. letter dated 17 October, 1961 was purely an internal communication of the Govt. copy whereof was never communicated to the appellants or other liquor contractors. There could be therefore, be no question of the limitation starting from that date.



challenging the

Kishore v.

State of


government’s right to


charge 7 ½ percent


were pending in the



M.P High Court , the

1990 SC






announced that it would continue to charge it. The Appellants thus paid for the above contracts a total extra sum of Rs.54,606. The suit was for refund of money paid under mistake of law.

The Trial court taking the view that Art. 62 and 96 of the first schedule of the Limitation act were applicable and the period of limitation would began to run from the dates the payments were made to the govt. held that suit to be barred by limitation and dismissed it. In Appeal H.C applying A.113 r/w sec.17 and not A.24 of the schedule to the Limitation Act was applicable and held that the limitation began to run from October 17, 1961 on which date the govt. decided to charge extra 7 ½ percent.


The Judgment of the High Court is set aside.



The appellants

Whether the

A valid oral mortgage comes into existence on the very day of its execution. So the suit is time barred.Under sec.80, if the limitation has already expired, it would not revive. It is only during subsistence of a period of limitation such document is executed that the limitation would be revived afresh from the date of the acknowledgement. In the present case, there is neither any deed nor document of mortgage. Mortgage could be redeemed at any time within 60 years from the date of mortgage.

Period of Limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage i.e March



Singh v.


purchased the suit property in the year

suit for


redemption is



from the original

barred by






mortgagor, by registered sale deed.

(smt.) AIR


Whereas on 11-1-


1999 SC


the original


mortgagee sold his right by a registered deed to the respondents, who acknowledged the existence of mortgage in question.In 1980, appellants filed the present suit for possession by way of 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.




34. State


The Plaintiff’s services were terminated for unauthorised absence without an enquiry. He instituted the suit for declaration that the termination order was against the principles of natural justice, terms and conditions of employment. The trial court dismissed the

Whether suit for such relief is not governed by any provisions

The Statute of limitation was intended to provide a time limit for all suits conceivable. Sec. 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed “period of limitation” must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. If the suit is not covered by any of the specific articles

The aggrieved party must approach the court within the prescribed period of limitation. If the statutory time expires the court cannot give the declaration sought for.

of Punjab

v. Gurdev

113 of



(1991) 4


of the Limitation Act,



suit on limitation. But on appeal additional District Judge decreed the suit and held that no limitation is prescribed for challenging an illegal order. Since the order of termination is bad, the suit is not barred by limitation, HC agreed with itl.


prescribing a period of limitation, it must fall within the residuary article.A.113 is a residuary article for cases not covered by any other provisions in the act. It prescribes a period of 3 years when the right to sue accrues. The Words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings.

So the SC set aside the the judgment and decree of the High Court.

35. Ajaib


The services of the appellant workman were terminated by the respondent management without

compliance of the mandatory provisions of the Industrial Dispute Act, 1947. The Labour court directed restatement of the workman. The Single Judge of the HC held that no relief to the workman as filed a case after a prolonged delay, devision bench also upheld it.

Whether Limitation Act, 1963 will apply to Industrial Dispute Act,

It is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The Courts admittedly interpret the law and do not make laws. Personal views of the judges presiding over the court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature.

The provisions of Articles 137 of the schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Industrial Dispute Act and that the relief under it cannot be denied to the workman merely on the ground of delay.

Singh v.


137 of








g Service


Ltd., AIR

1996 SC