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Case Section Facts Issue Observation DecisionGundajiSatwajiShinde v.RamachandraBhikajiJoshi(AIR 1979SC 653)Section 9Plaintiff sued for 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 p...

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Gundaji Satwaji Shinde v. Ramachan dra Bhikaji Joshi (AIR 1979 SC 653)

Section Section 9

Facts Plaintiff sued for 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).

Issue Whether the 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.

Observation Observations: 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 is filed. Upon such contest, 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 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.

Decision 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 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.

2 Indian Bank v. Maharash tra State Cooperative Marketing Fed. Ltd.

Section 10- Res Sub Judice

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 filed under Order 37 of the Code.

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.

Section 11- Res judicat a betwe

There was conflict of interest among coplaintiffs. In the previous suit, Ishtaq Ahmed, K.Fatima,

Whether earlier decision of the court regarding the title of the Property in

The SC held that if following 4 principles were satisfied then it would operate as res- juducata1)-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

(AIR 1998 SC 1952)

3.Iftikar Ahmed v. Syed Meharban

Ali, AIR 1977 SC 749

en co defend ant

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

Section 11, Explan ation IVConstr uctive Resjudi cata

(AIR 1977 SC 1680) “Constructiv e Res Judicata”

M.Ali (Co-plaintiffs) instituted a suit against the mortgagee, relating to shares of the latter two in mortgaged properties.in 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. 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

question would operate as resjudicata in between the parties.

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 judicata has to operate.

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 a subsequent regular suit. It is not necessary that the court deciding the matter formerly be a competent to decide the subsequent suit or that the

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.

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. O.2 5. C.A. Balakrishn Rule 2. an v. Commissi oner, Corpn. of Madras (AIR 2003 MAD 120)

6. Chunnilal v. Mehta v. Century Spining and Manufact

Section 100 (Secon d Appeal )

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.

Much before the expiry of contractual period, the respondent company removed the appellants as managing agent. The appellants filed a suit

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

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

Topic 6 : Appeals Whether the contruction of a document of title which is foundation of the rights of the parties raises a

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.

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

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.

uring Co. Ltd., AIR 1962 SC 1314

7. Koppi Setty v. Ratnam. V. Pamarti Venka

Section 100

Substantial Question of Law

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. b) In an earlier Bombay 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 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 ) Recommendation of Law commission in 1973 amended section 100 which made it compulsorily to formulate substantial question of law. An unqualified right of first appeal may be necessary for

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.

the satisfaction of the defeated litigant but wide right of 2nd appeal is more a luxury.

2009 RLR 27 (NSC)

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, 1986 RLR 370

Sectio n 107, R ule 27 of Order XLI of the Code

Eviction notice to M/S Gill & Co on grounds of (a) non-payment of rent; (b)misuse , (c) bona fide requirement as residence for herself and members of her family ; (d) Sub-letting.

Whether the learned tribunal was correct in rejecting the application for production of additional evidence.

TOPIC-7 REFERENCE

• The general rule is that an appellate court shall decide an appeal on the evidence led by the parties before the lower Court and shall not admit additional evidence for the 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. • Likewise, it is not the 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 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.

Jurisdiction of the High Court in 2nd Appeal is confined to the determination of substantial question of law and not to reverse the findings of fact. Hence High Court in 2nd appeal cannot reappreciate the evidence and 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 based on no evidence at all or was arbitrary, unreasonable or perverse. The High Court was incompetent to reassess the evidence afresh and it was bound by the decision of the Tribunal on questions of fact.

9. Haridas S.114 r/w Das v. O.46 Smt. Usha Rani Banik, 2006 (3) SCALE 287

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

• In order to appreciate 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. • The parameters are 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. • The former part of the 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. • This is amply evident 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 judgment.

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 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. 201 of 1985 was barred by the provisions of Order II Rule 2 CPC. This question arose in Title Suit No.1 of 1986 and was irrelevant so far as Title Suit No.2 of 1987 is concerned. Additionally, the High Court erred in holding that no prayer for leave under Order II Rule 2 CPC was made in 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 it has been noted that right to institute suit for specific performance was reserved. That being

• Where the order in 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.

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 • 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 contrary to law as sought : (a) from the discovery laid down by this of new and important matters Court. The judgment or evidence which after the of the High Court in exercise of due diligence was not within the knowledge of the review application is set aside. applicant; (b) such important matter or evidence could not be Consequently, produced by the applicant at the judgment and order passed in the time when the decree was Second Appeal passed or order made; and (c) stand restored. on account of some mistake or Appeal is allowed error apparent on the face of with no order as to record or any other sufficient costs. 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

10. Mahant Ram Das v. Mahant Ganga Das, AIR 1961 SC 882

Section 148, 149 & 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

TOPIC-8 INHERENT POWERS OF COURT (S.151) 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, ...