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Code of Civil Procedure india

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    • #112010 Reply
      Giga
      Guest

      Affidavit – Not evidence

      Affidavits are not included within the purview of the definition of “evidence” in S.3 of the Evidence
      Act, and the same can be used as “evidence” only if ,for sufficient reasons ,the court passes an order
      under o. 19 of the Code of Civil Procedure,1908.Thus ,the filing of an affidavit of one’s own statement, in one’s own favour ,cannot be regarded as sufficient evidence for any Court or Tribunal ,on the basis of which it can come to a conclusion as regards a particular fact – situation. However , in a case where
      the deponent is available for cross – examination , and opportunity is available for cross – examination
      him, the same can be replied upon .Such view ,stands fully affirmed particularly ,in view of the
      amended provision of O.18 ,Rules 4 and 5,CPC.

    • #112014 Reply
      Giga
      Guest

      Ss.100 ,115

      Appellate and revisional jurisdictions –Distinction – Appellate jurisdiction gives right to aggrieved party to complain to higher forum –Where as revisional jurisdictions casts responsibility on higher forum to keep subordinate forum within limits of law.

    • #112015 Reply
      Giga
      Guest
      1. O.23, R. 1 of CPC

      Ratangiri Gas and Power Pvt. Ltd. v. RDS Projects Ltd. and ors. AIR 2013 SC 200
      T.S. THAKAR AND Mrs GYAN SUDHA MISRA, JJ.

      Withdrawl of petition – Tenability of Second petition for same relief – Petition
      challenging rejection of petitioners bid and cancellation of entire tender process – Petition withdrawn – Permission to file fresh petition obtained if petitioner is excluded from competing in fresh tender process – Permission so granted permits petitioner only to seek redress against its exclusion from fresh tender process – Not to re-agitate issue regarding annulment of tender process – Second petition filed seeking relief against petitioner’s exclusion from fresh tender notice and also relief against rejection of its earlier bid and cancellation of bid process – Not maintainable as regards latter relief.

    • #112016 Reply
      Giga
      Guest
      1. O 6, R 2

      Banka Bihari Mohapatra V. Gitagobinda Patra and others.2013 (1) CLR 126

      B.N.MAHAPATRA,J.

      Pleadings –What it should contain –“Material Facts” –What constitute. Order VI, Rule 2, CPC postulates that every pleading shall contain, and contain only, the statement in concise form of the material facts on which a party pleading relies for his claim or defence,as the case may be, but not the evidence by which they are to be proved.

      “Material facts” are primary or basic facts which must be pleaded by the plaintiff or defendant in
      support of the case set up by him either to prove his cause of action or defence.

    • #112017 Reply
      Giga
      Guest
      1. S. 11

      Rajan Purohit & Ors. v. Rajasthan University of Health Science &ors. 2013 (1) CLR (SC) 134
      A.K.PATTANAYAK V.SWATANTER KUMAR ,JJ .
      Civil Appeal no.8142 of 2011 with Civil Appeal no.8143 of 2011, Civil Appeal no.8144 of 2011, Civil
      Appeal no.6210 of 2012,(Arising out of SLP (C) No.24967 of 2011 and Civil Appeal no.6211 of
      2012(Arising out of SLP (C) No.25353 of 2011.(D.O.J-30/08/2012)

      Res judiata –Order of single Judge of High Court attaining finality –Issue now raised not before the single Judge –Principle of Res judicata not attracted.

    • #112020 Reply
      Giga
      Guest

      O 7, R 11

      Fatima Begum vs Usman Mohammad. 115 (2013) CLT 42
      B.N.Mahapatra,J.

      Whether question of law not raised before the lower Court in the petition filed u/order 7 ,r 11 CPC
      canbe raised in a revision petition? –Point of law which goes to the root of the case can be raised at any time –Even if a point of law was not raised in the court below – that does not preclude the parties to raise the same before the Appellate Court or revision Court for the first time.

      So far as question No.(v) (Whether the question of law which has not been raised before the
      Lower Court in the petition filed under Order 7, Rule 11, CPC can be raised before the High Court in a
      revision petition?), is concerned, the law is no more res-integra that a point of law which goes to the root of the case can be raised at any time. Therefore, even if a point of law was not raised in the Court below that does not preclude the parties to raise the same before the Appellate Court or revision Court for the first time. (See Sk. Jamaitullah and others vs. Sk. Jayakatullah and others, 1996 (I) OLR 98).

    • #112021 Reply
      Giga
      Guest

      CPC O 1, R 10

      Smt.Rita Rani Mishra And Three … vs Sachidananda Badhei And Six ors. 115 (2013) CLT 81
      C.R. Dash, J.

      Title (eviction ) suit – Impleadment as Defendents –Petition allowed with direction to Plaintiff to take
      necessary steps for necessary steps for adding the present Petitioners as Defendents –Petition allowed
      with direction to Plaintiff to take necessary steps for adding the present Petitioners as Defendants
      Written Statement filed was refused to be accepted –Writ petition –Irrespective of the nomenclature or
      the provisions , under which a person has to take the character on the ground of which he has been
      impleaded in their independent or personal capacity – They have been impleaded only on the ground
      that they are left out legal representatives of deceased Defendant No. 1 –They can not depart from the
      pleadings filed by the deceased Defendant & they cannot claim a right to file a contrary pleading on the basis of individual & independence title – No interference.(2012 (II) OLR 739),(AIR 1995 SC 1653).

    • #112099 Reply
      Tina DU
      Guest

      Harcharan Singh Hazooria v. Kulwant Singh Hazooria (Mukta Gupta, J.)

      ILR (2014) I DELHI 22
      CS (OS)
      HARCHARAN SINGH HAZOORIA …PLAINTIFF
      VERSUS
      KULWANT SINGH HAZOORIA & ORS. ….DEFENDANTS
      (MUKTA GUPTA, J.)
      I.A.NO. : 13091/2013 IN DATE OF DECISION: 01.10.2013
      CS (OS) NO. : 2244/2008
      Civil Procedure Code, 1908—Order XIV, Rule 15—
      Application for deletion of issue. Suit praying for
      partition of the suit property in equal shares as per
      the Will of the late mother of the parties made in 1996.
      In the Written Statement Defendant have challenged
      Plaintiff’s locus standi to file the present suit—Late
      mother of the parties, who was admittedly absolute
      owner of the property, had alienated the suit property
      during her life time vide gift deed to the answering
      Defendants—Therefore, alleged Will is irrelevant, since
      property was alienated before the Will came into operations. Plaintiff has disputed the validity of the
      gift deeds by which Defendants claim absolute
      ownership of the suit property—Plaintiff submits that
      in view of Defendants admitting to the Will, Plaintiff
      was no longer required to prove validity of the Will,
      therefore the relevant issues be modified accordingly.
      Held: There is no admission about the genuineness of
      the Will by the Defendants—The Defendants being
      absolute owners of the suit property, the plaintiff
      cannot claim partition thereof or claim any right, or
      little therein—To base a claim on a will, Plaintiff has to
      prove genuineness of the Will, apart from existence.
      Admission about making a Will does not amount to
      admission of due execution of the Will. Therefore,
      Application dismissed.

      A perusal of the written statement would thus show that
      wherever there is an averment regarding the Will, the
      defendants have used the term “alleged Will” and have in
      general denied the averments relating to the alleged Will.
      Undoubtedly there is no specific denial that the Will dated
      5th January, 1996 was never made. However, at the same
      time there is no admission about the genuineness or legality
      of the Will. In light of these facts, it is thus to be examined
      whether the plaintiff is required to prove the validity of the
      Will.

      Gautam Sarup v. Leela Jetly
      [(2008) 7 SCC 85], wherein it was observed as
      follows: (SCC pp. 90 & 94, paras 16 & 28)
      “16. A thing admitted in view of Section 58 of the
      Evidence Act need not be proved. Order 8 Rule 5 of
      the Code of Civil Procedure provides that even a
      vague or evasive denial may be treated to be an
      admission in which event the court may pass a decree
      in favour of the plaintiff. Relying on or on the basis
      thereof a suit, having regard to the provisions of
      Order 12 Rule 6 of the Code of Civil Procedure may
      also be decreed on admission. It is one thing to say
      that without resiling from an admission, it would be
      permissible to explain under what circumstances the
      same had been made or it was made under a mistaken
      belief or to clarify one’s stand inter alia in regard to
      the extent or effect of such admission, but it is
      another thing to say that a person can be permitted
      to totally resile therefrom. …

      CASES REFERRED TO:

      1. Kanwarjitsingh R Chadha vs. Sahebrao Gajanan Salve and others Apeal No.826 of 2013.
      2. Balathandayutham and another vs. Ezhilarasan, (2010) 5 SCC 770.
      3. S.R. Srinivasa and others vs. S. Padmavathamma, (2010) 5 SCC 274.
      4. Gautam Sarup vs. Leela Jetly [(2008) 7 SCC 85].
      5. R. Vellingiri and Gokila vs. S R Kannaian and others (Appeal No.828 of 2007.
      6. Rajan Suri and another vs. State and another, AIR 2006 Delhi 148.
      7. Thayyullathil Kunhikannan and others vs. Thayyullathil Kalliani and others, AIR 1990 Kerala 226.
    • #112100 Reply
      Tina DU
      Guest

      Whether it is permissible for the Defendant to move an application for amendment of
      Written Statement after framing of issues and prior to evidence being led.

      As per the proviso to Order VI Rule 17 CPC no application
      for the amendment shall be allowed after the trial has
      commenced unless the Court comes to the conclusion that
      inspite of due diligence the party could not have raised the
      matter before the commencement of the trial. The issue as
      to when the trial commences is no longer res integra. The
      Hon’ble Supreme Court in Baldev Singh and others vs.
      Manohar Singh and another, 2006 (6) SCC 498 held:
      “17. Before we part with this order, we may also notice
      that proviso to Order 6 Rule 17 of the Code of Civil
      Procedure provides that amendment of pleadings
      shall not be allowed when the trial of the Suit has
      already commenced. For this reason, we have
      examined the records and find that, in fact, the trial
      has not yet commenced. It appears from the records
      that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears
      that the Suit was not on the verge of conclusion as
      found by the High Court and the Trial Court. That
      apart, commencement of trial as used in proviso to
      Order 6 Rule 17 in the Code of Civil Procedure must
      be understood in the limited sense as meaning the
      final hearing of the suit, examination of witnesses,
      filing of documents and addressing of arguments. As
      noted hereinafter, parties are yet to file their
      documents, we do not find any reason to reject the
      application for amendment of the written statement in
      view of proviso to Order 6 Rule 17 of the Code of Civil
      Procedure which confers wide power and unfettered
      discretion to the Court to allow an amendment of the
      written statement at any stage of the proceedings.

      CASES REFERRED :

      1. Rajesh Sharma vs. Krishan Pal and Another, 2011 (126) DRJ 34.
      2. Ajendraprasadji N. Pande and Another vs. Swami
        Keshavprakeshdasji N. and Others, (2007) 1 JT 579.
      3. Link Engineering (P) Ltd. vs. Asea Brown Boveri Ltd. & Others., 140 (2007) DLT 53.
      4. Andhra Bank vs. ABN Amro Bank N.V. and others AIR 2007 SC 2511.
      5. Baldev Singh & Others vs. Manohar Singh & Another, (2006) 3 SCC 498.
      6. Smt. Neelam Gupta vs. Smt. Sheela Devi and others, 87 (2000) DLT 368
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