Calcutta High Court Judgments on Civil Matters

The enabling provision of Order VI Rule 17 of the Code of Civil Procedure empowers the Court to permit the party to amend or alter the pleading at any stage of the suit if the same is necessary for determination and/or adjudication of the disputes involved therein. The stage of the suit has not been defined which necessarily imbibe within itself the date on which the plaint is presented till the judgement. Even the appellate Court can exercise such power as the appeal is a continuance of the lis and cannot be treated to have ended because of the judgment having delivered by the Trial Court. However, the appellate Court should have been more cautious in permitting the party to amend the pleading at the appellate stage as it may sometime displace the other side to his disadvantages having emerged successful from the Court of first instance [Also available at 2016(1) CLJ (CAL) 284]

As such, we hold that Section 80 of the Code of Civil Procedure has no application for maintaining an application for election petition before the District Judge [Also available at 2016(1)CLJ (CAL) 261]

We agree with the Tandon, J. and hold that where the value of the subject matter of the disputed claim in arbitration does not exceed Rs.10 lakhs, the Original Side of this Court has no jurisdiction to entertain an application under the 1996 Act. If the value of the subject matter of the dispute in arbitration does not exceed Rs.10 lakhs an application under the 1996 Act can only be entertained by the City Civil Court at Calcutta and not the High Court exercising original jurisdiction. However, where the value of the subject matter of the dispute in arbitration exceeds Rs.10 lakhs it is the Original Side of the High Court alone which would have jurisdiction to entertain an application under the 1996 Act [Also available at 2016(1) CLJ (CAL) 408]

The doctrine of merger does not make a distinction between an order of reversal, modification, or an order of affirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. When an appellate court passes a decree, the decree of the Trial Court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the Trial Court [Also available at AIR 2015 (NOC) 596 (CAL)]

Hence, it is opined although Order 27 Rule 8A may exempt the appellant Government from the mandatory obligation of furnishing security in terms of Rule 1(3) for seeking stay of execution of a money decree as under Rule 5(5) of Order XLI, the said provision cannot be said to operate as an absolute clog on the discretion of the Court to direct the deposit of the decretal amount as a condition for grant of stay of execution of the decree in appropriate cases more particularly when such direction is coupled with the liberty to the decree holder to withdraw a portion thereof in part satisfaction of the decree without prejudice and subject to the result of the appeal [Also available at AIR 2015 CAL 89]

Where an appeal has been presented beyond the period of limitation, notices ought to be issued, before registering it, upon the respondents and the question of extension of time should be determined before such registration [Also available at AIR 2015 (NOC) 1147 (CAL)]

Scope of application of Order 12, rule 6 cannot be restricted to admissions made in pleadings or prior to the pleadings. The admission made by the party must be clearly unambiguous, unequivocal and unconditional. Admissions could be express or implied. Plaintiff’s admission in re-joinders can also be the basis for dismissal of the suit on an application by the defendant [Also available at AIR 2015 (NOC) 21 (CAL)]

Order 7 Rule 11(d) of CPC has limited application. It must be shown that the suit is barred under any law and such conclusion must be drawn from averments made in the plaint. No amount of evidence can be looked into. If the law by which the defendant claims rejection of the plaint on the ground of limitation such fact should be manifest from a reading of the plaint and does not call for any investigation into any fact at all. In order to find out whether the suit is barred by limitation under Article 58 or 59 of the limitation Act, 1963, the same has to be manifest from a reading of the plaint and no amount of evidence can be looked into [ Also available at AIR 2015 (NOC) 510 (CAL)]

One does not miss the distinction that is made by the legislature between a witness who resides within the jurisdiction of this Court and the one who resides outside the jurisdiction of this Court. If the Court issues a commission for examination of a witness within its jurisdiction it has to be satisfied that he is sick or infirm or exempted. After the introduction of rule 4A even a witness within jurisdiction can be examined on Commission, for special reasons. When it comes to examination of a person living outside the jurisdiction of the Court, the rules are lenient. In fact, no condition has to be satisfied under Rule 4 before a commission can be issued. In fact, this provision for examination of a witness on commission under Rule 4 was amended by the Amendment of 1976 [Also available at AIR 2015 (NOC) 807 (CAL)]

In my view, Section 44 of the 1997 Act should be read to mean that a Civil Court shall not have the jurisdiction to entertain an original or independent suit or proceeding by the tenant for effecting repairs to the premises in question. However if a civil suit is already pending between the landlord and the tenant, it is the Civil Court in seisin of that suit which alone will have jurisdiction in the matter of repairs to the premises. According to me, it does not matter whether the landlord or the tenant has instituted the civil suit. It could be a suit for eviction and recovery of possession filed by the landlord or it could be a suit for declaration and injunction filed by the tenant. In both cases and cases of similar nature, the Civil Court alone will have jurisdiction to entertain disputes as to repairs [Also available at AIR 2015 (NOC) 834 (CAL)]

Grant of temporary injunction is governed by three basic principles, that is, prima facie case, balance of convenience and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But, it may not be appropriate for any court to hold a mini-trial at the stage of grant of temporary injunction [Also available at 2015 (1) CLJ (CAL) 57]

The admission to have a decree under Order 12 Rule 6 has to be clear admission. If it is a conditional admission Court cannot exercise discretion while considering the application under Order 12 Rule 6 [Also available at 2015(1) CLJ (Cal) 177]

Though the appellants claim that the delay was 186 days, but, in fact, we find from the Stamp Reporter’s report that the delay was of 587 days in filing this appeal. Of course, length of delay is not very much material. What is material is the reasonableness of the explanation for such delay. Thus even a day’s delay may be fatal. On the contrary, delay of several years may be condoned where delay has been reasonably and sufficiently explained [Also available at 2015(1) CLJ(Cal) 196]

The Madras High Court In Re, Raman reported in AIR 1958 Madras 312 held that delay should not be excused without notice to the respondent because after the period of limitation the respondent acquired valuable right and he could not be deprived of that right without notice [Also available at 2015(1) CLJ (Cal) 330]

In my opinion, a dispute is better resolved on contest than ex parte. Striking out the defendant’s defence is a very serious step. As observed by the Hon’ble Supreme Court in the above case, unless the conduct of the defendant is such that no mercy should be shown to him, the court should always use its discretion to grant time to the defendant to make the deposit under section 7[1] on such terms as it thinks fit [Also available at 2015(1) CLJ (Cal) 333]

The plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum [Also available at 2015 (1) CLJ (Cal) 470]

It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view [Also available ar 2015 (1) CLJ (Cal) 505]

The proviso to Order 6 Rule 17 of CPC does not create any insurmountable bar in all circumstances and while considering an application for amendment it needs to be ascertained as to whether the controversy can be brought to an end once for all between the parties by the amendment. It is also well settled that Court should not adopt a hyper technical approach and must be liberal in granting the prayer for amendment if by denial thereof the party praying for amendment will suffer irreparable loss and injury [Also available at 2015 (1) CLJ (Cal) 626]

Principle of law needs no reiteration that nothing should be allowed to be done indirectly which cannot be done directly. In view of the fact that this Court finds prima facie substance in the locus of the plaintiffs to agitate their reliefs in the suit, to non-suit them at the threshold would result in grave miscarriage of justice [Also available at 2015 (1) CLJ (Cal) 546]

When in a proceeding a party dies and one of the legal representatives is already on record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record, as an heir and legal representative. The Supreme Court further held that even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate [Also available at 2016(2) CLJ (Cal) 235]

In the instant case Section 34 enjoins that an application for setting aside an arbitral award can be made by an application before a Court and the definition of the word "Court" clearly lays down that it must be the principal Civil Judge of the District and such a principal Civil Judge cannot mean to include a Civil Court being a grade inferior to such principal Civil Judge. That being the position, the assignment to the Additional District Judge who may be a Civil Court under the Civil Courts Act was clearly illegal in view of Sections 2(e) read with Sections 34 and 42 of the Arbitration Act [Also available at 2015 (2) CLJ (Cal) 73]

Order 27 Rule 8A does not exempt the appellant Government from satisfying the Court as to the existence of conditions (a) and (b) of Rule5(3) of Order XLI in order to obtain stay of execution of the decree appealed against. Hence, question no. 1 is answered in the negative [Also available at 2015 (2) CLJ (Cal) 117]

After the amendment having brought into the Code of Civil Procedure, unless the order is of such nature, which ends the proceeding finally, the same is not capable of being revised under the aforesaid provisions [Also available at 2015 (2) CLJ (Cal) 136]

The expression "all the questions involved in the suit" is significant to ascertain whether the person sought to be added is a proper and necessary party. The expression should be construed to mean the controversies raised between the parties to the litigation with regard to the rights set up and the relief claimed therein and had been denied by the other party [Also available at 2015 (2) CLJ (Cal) 186]

Order 7 Rule 11 (d) of the Code can be pressed in action only when from the meaningful reading of the plaint and taken the statements to be correct, the suit does not disclose any cause of action. It is the plaint and only the plaint which should be looked into to find out that it would be a futile exercise if such suit is allowed to continue [Also available at 2015 (2) CLJ (Cal) 546]

The Sub Rule 1 of Rule 6A is couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim which may form the subject matter of the independent suit, therefore, there is no hesitation to hold that the counter claim may be made by the defendant on his own cause of action against the plaintiff and is not relatable to the cause of action of the plaintiff or restricted to a money suit or suit for damages. [Also available at 2015 (3) CLJ (Cal) 401]

A bare reading of Rule 10-A of Order XXII of the Code makes it abundantly clear that the obligation of an advocate is to inform the Court, the death of the party whom he was representing. The said Rule does not cast any obligation upon the advocate of the deceased party to inform the Court of the particulars of the legal representatives of the said party deceased party. Further no penalty and consequence are contemplated under the said Rule in default of any failure to comply with the said Rule 10A of Order XXII of the Code. Thus, I am unable to accept the contention of the appellant that the provisions of Rule 10-A of Order XXII of the Code is mandatory [Also available at 2015 (3) CLJ (Cal) 420]

The words "survives" and "surviving" have not been used in R. 2 of O. 22 in the technical sense of survivorship prevailing in Hindu Law. The expression "the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone", means that the right to sue is transmitted or passes to the plaintiff or plaintiffs alone or against the defendant or defendants alone who are already on the record by succession, inheritance or otherwise [Also available at 2016 (2) CLJ (Cal) 298]

In this age of docket explosion, in my view, it is the duty of the Court to dispose of suits in a summary way where the Court finds that there is no possibility of the defence to succeed even if it is tried as a suit. A matter can be decided on the basis of affidavit of evidence without calling for an oral testimony. The Court has to find out whether the issue raised can by decided on the basis of affidavit of evidence [HC Also available at 2016 (2) CLJ (Cal) 315]

It is, therefore, clear from the language given in Section 34 of the Act that the Civil Court shall not grant injunction in respect of any action taken or to be taken in pursuance of any order conferred by or under the said Act or under the recovery of money due to Banks and Financial Institutions Act, 1993. Without entering into the area of dispute whether the Civil Court is competent to entertain a suit of such nature, it is manifest from the aforesaid provision that the Civil Court shall not pass any injunction restraining the secured creditor from taking any action under the said Act [Also available at 2016 (2) CLJ (Cal) 457]

A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all coowners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.[Also available at 2016(3) CLJ(Cal) 411]

A Mohammedan cannot, through the medium of a trust, settle property for the benefit of persons who are incapable of taking under a gift, nor can he through the medium of a trust, create an estate not recognized by the law of gift governing the sect to which he belongs. For example, a Mohammedan cannot through the medium of a trust settle property in favour of an unborn person, since, neither a Sunni nor a Shia can make a gift in favour of an unborn person.[Also available at 2016(3) CLJ(Cal)468]

The principle of assessment of Court-fee is that where a plaintiff asked for a declaration with a consequential relief, he is bound to pay ad valorem fee proportional to the loss from which he seeks to be relieved. The principle to be followed is to ascertain the substance of the relief claimed and not the form of the language of the plaint. A suit for cancellation of a deed is not one for declaration. In order to avoid payment of ad valorem court-fee, the relief of cancellation is often couched in the form of a declaration that the deed is void or is not binding on the plaintiff or that the deed does not affect the plaintiff’s interest. In such cases, if cancellation of or avoiding the effect of the deed is implicit in the declaration sought for Section 7(iv)(c) would apply. However, there will be situations where the plaintiff may not be required to ask for cancellation of the documents. No such relief can be implied if the plaintiff is not required to have the deed cancelled or set aside or to avoid the effect of the deed. A third party need not sue for cancellation. Even where the plaintiff being a party to the deed alleges that it was not executed by him but it is a forged one, he need not seek consequential relief of cancellation [ 2016(3) CLJ (Cal) 553].

The legal tests for holding a party necessary for an adjudication has also not been followed by the Tribunal. There is no discussion whether the petitioner has a direct or substantial interest in the subject matter of reference or whether its presence is necessary for answering the issues arising out of it. When the Tribunal held that for adjudication of the dispute the presence of the petitioner herein is necessary, it has obviously meant it to be a necessary party. For deciding whether a party is necessary it is essential to come to a finding that without him no order can be effectively made. But here there is no determination by the Tribunal whether, and, if so, why the presence of the petitioner was necessary for effective and complete adjudication of the reference. Without any such effort the conclusion arrived at by the Tribunal has been rendered rather vulnerable [2016(3) CLJ (Cal) 523].

Calcutta High Court Judgments on Civil Matters

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