Civil Procedure Code, 1908—Order 41, Rule 23—Remand of case—Considerations for—Finding on a specific point required—Remittal of the whole case is not called for.
AIRAIR All India Reporter 1975 SC 1409 : (1975) 3 SCRSupreme Court Reports It is the official Reporter of the reportable decisions delivered by the Supreme Court of India. It is published under the authority of the Supreme Court of India by the Controller of Publications, Government of India. 958 : (1975) 1 SCCSCC Supreme Court Cases 770
SUPREME COURT OF INDIAArticle 124 of the Constitution of India Constitution of India > 124. Supreme Court (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years: Provided that-- (a) a Judge may, by writing under his hand addressed to the President, resign his office (b) a Judge may be removed from his office in the manner provided in clause (4). (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-- (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4): (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.
Pasupuleti Venkateswarlu
Versus
The Motor and General Traders
(Before : A. N. Ray, C.J.I., K. K. Mathew And V. R. KrishnaKrishna Author of Bhagavad Gita (3227-3102 BCE) > “कृषिर्भूवाचकः शब्दः णश्च निर्वृतिवाचकः । तयोरैक्यं परं ब्रह्म कृष्णैत्यभिधीयते”| (“कृषेर्व्वर्णे” । उणां ३ । ४ । इति नक् ततो णत्वम् । Similar: विष्णु नारायण कृष्ण वैकुण्ठ विष्टरश्रवस् दामोदर हृषीकेश केशव माधव स्वभू दैत्यारि पुण्डरीकाक्ष गोविन्द गरुडध्वज पीताम्बर अच्युत शार्ङ्गिन् विष्वक्सेन जनार्दन उपेन्द्र इन्द्रावरज चक्रपाणि चतुर्भुज पद्मनाभ मधुरिपु वासुदेव त्रिविक्रम देवकीनन्दन शौरि श्रीपति पुरुषोत्तम वनमालिन् बलिध्वंसिन् कंसाराति अधोक्षज विश्वम्भर कैटभजित् विधु श्रीवत्सलाञ्छन पुराणपुरुष यज्ञपुरुष नरकान्तक जलशायिन् विश्वरूप मुकुन्द मुरमर्दन लक्ष्मीपति मुरारि अज अजित अव्यक्त वृषाकपि बभ्रु हरि वेधस् | Iyer, JJ.)
Civil Appeals Nos. 2120 to 2122 of 1972, Decided on : 18-03-1975.
Civil Procedure Code, 1908—Order 7, Rule 7—Subsequent event—Consideration of—Subsequent event brought promptly to the notice of Court must be considered.
It is basic to our processual jurisprudenceJurisprudence It is a branch of philosophy, that discusses the legality of Law. Oppenheimer v Cattermole (1976), the court considered the question of whether a Nazi law was so iniquitous that it should refuse to recognise it as a law, thus raising the connection between the concepts of law and morality. that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows., arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justiceJustice δικαιοσύνη > judicature ( δικαιοσύνη) > judge (δικαστής / κριτής). The whole purpose of Plato`s Republic is to search for Justice. The purpose of Justice is to establish a perfect State. The State of happiness (ευτυχία)—subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this powerPower The amount of energy transferred or converted per unit of time. In the International System of Units, the unit of it is the watt, equal to one joule per second. The capacity of energy infrastructure is rated using watts, which indicate its potential to supply or consume energy in a given period of time. A Power-plant rated at 100 MW has the potential to produce 100 MWh if it operates for one hour. to take note of updated facts to confine it to the trial CourtTrial court Court of original Jurisdiction > the court which examines the evidences for the first time.. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in lawLaw νόμος: Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article or justice.
Counsel for the Parties:
Mr. K. S. Ramamurthi, Sr. Advocate (M/s. M. S. Narayana Achari and C. S. S. Rao, Advocates of M/s. J. B. Dadachanji and Co., with him), for Appellant
M/s. K. R. Choudhury and K. Rajendra Choudhury, Advocates, for Respondent.
JudgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
Krishna Iyer, J—Once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by the Supreme Court survives at all in these appeals. We may straight way proceed to state, with brevity, the case of the appellant presented for our scrutiny and make short shrift of it as it meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. little more.
2. The appellant, a landlord of large building, had leased out in separate portions his building to several tenants. One of such tenants is the respondent. The former resolved to start a business in automobile spares and claimed eviction of the respondent by Rent Control proceedings, under Section 10 (3) (iii) (a) and (b) of the Andhra Pradesh Buildings (LeaseLeasehold The leaseholder has no right or interest in the land, he pays rent to the landlord for using the flat or house. A lease is an agreement between the freeholder and the tenant. Commonhold is a form of ownership (or tenure) for multi-occupancy developments (flats of a building). Each unit-holder owns the freehold of their flat, and a commonhold or residents’ association owns and manages the common parts of the property., Rent and Eviction) Control Act, 1960. The petitionPetition αναφορά > παρακαλώ (Prayer) was resisted and the Rent Controller dismissed the petition. The appeal by the landlord failed but, in revision, the High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission. chose to remand the case to the appellate authority. The litigation lengthened further because the latter, after hearing parties, remitted the whole case to the trial Court for fresh disposal in accordance with some directions and, after allowing parties to lead evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 . Instead of finishing the case at the trial court level, the landlord repeated a revision to the High Court on the perhaps technically correct stand that a wholesale remittal, as against calling for a finding on a specific point, was illegal. While hearing protracted argumentsArguments It is not quarreling. It can be divided into Deductive, inductive, and conductive > Functional includes include: “because”, “since”, “for”, and “as”; typical conclusion indicators include “therefore”, “thus”, “hence”, and “so”. पंच अवयव तर्कः प्रतिज्ञा हेतू उदाहरणम् निगमनम् अवयवाः > premises to conclusion or conclusion to premises to Proof something. Proof is a derivation of a conclusion from premises through a valid argument. it came to the ken of the Court that certain material events of fatal import to the maintainability of the eviction proceedings had come to pass and so it decided to mould the relief in the light of these admitted happenings. The learned Judge observed:
“If the fact of the landlord having come into possession during the pendency of the proceedings of Shop No. 2 is to be taken into account, as indeed it must be, then clearly the petition is no longer maintainable under section 10 (3) (iii) of the Act, as the requisite condition for the invoking of that provision has ceased to exist viz., that the landlord was not occupying a non-residential building in the town. “Building’ of course means a portion of a building. As the prerequisite for the entitlement of the petitioner to institute and continue a petition has ceased to exist, it must follow that ABA No. 5/1967 is no longer maintainable and must be dismissed.”
The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition. Thus, after a marathon forensic battle lasting over six years, the landlord lost even the flickering hope of success before the trial Court as a result of supererogatory revision to the High Court. It is against this adverse decision he has, by special leave, come to this Court.
3. Two submissions were advanced by Sri K. S. Ramamurthy to salvage his client’s case (supra). He argued that it was illegal for the High Court to have taken cognisance of subsequent events, disastrous as they provedProved A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; to be. Secondly, he urged that once the High Court held- as it did- that the appellate tribunal acted illegally in remitting the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings, a misfortune heavier than would have been, had he not moved the High Court at all.
4. We feel the submissions devoid of substance. First about the jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.
5. The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v Keshwar Lal Chaudhuri, 1940 FCR 84 = (AIR 1941 FC 5) which is a leading case on the point. Gwyer C. J, in the above case, referred to the rule adopted by the Supreme Court of the United statesSupreme Court of the United States The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” – Article III, Section 1, United States Constitution. The Clerk receives documents for filing with the Court and has the authority to reject any submitted fling that does not comply with the Supreme Court Rules. The Clerk maintains the Court’s records and will not permit any of them to be removed from the Court building except as authorized by the Court. A Review of a writ of certiorari is not a matter of right but of judicial discretion. in Patterson v. State of Alabama. (1934) 294 US 600 at page No. 607:
“We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment ,was entered.” and said that that view of the Court’s powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co. (1939) 309 US 551 at page No. 555, Sulaiman J., in the same case 1940 FCR 94 = (AIR 1941 FC 5) relied onRelied on Relied to make the decision (ratio decidendi) and not only referred to push an issue. English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard (emphasis, ours). Varadachariar J., dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the point luminously (at page No. 103 of 1940 FCR) – (at page No. 13 of AIR):
‘It is also on the theory of an appeal being in the nature of a rehearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the Court of appealCourt of Appeal It is the highest court within the Senior Courts of England and Wales under the Constitutional Reform Act 2005 (Created in 1875) and deals only with appeals from other courts or tribunals. It is divided into two Divisions, Criminal and Civil, and is based at the Royal Courts of Justice in London (High Court). The judges of the Court of Appeal are the Lord/Lady Chief Justice, the Master of the Rolls, the President of the King’s Bench Division, the President of the Family Division, the Chancellor of the High Court and the Lord and Lady Justices. is entitled to take into account even facts and events which have come into existence after the decree appealed against.”
6. The High Court in this case, in the concluding stages slightly self-contradicted itself and observed:the civil revision petition cannot be entertained and proceeded further to state:’it will not be desirable that I should exercise my discretion in directing an amendment of the petition’. In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation:’If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his having come into possession of a portion of the building’. We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that:(a) the revision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent developmentDevelopment ανάπτυξη disabling the landlord from seeking eviction on which there is already an adverse finding by the High court; (c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and (d) the parties be given fair and full opportunity to file additional pleadings and lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High court, cannot be canvassed over again. That finding of legal disability cannot be reopened. We keep open for enquiry only grounds if any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction.
7. With these observations we partially allow the appeal as indicated above and direct the parties to bear their respective costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..
Note : the above judgment is over ruled by Shri Kishan @ Krishan Kumar Vs. Manoj Kumar Etc. Etc., (1998) 2 AD 162 : AIR 1998 SC 999 : (1998) 2 CTC 37 : (1998) 1 JT 633 : (1998) 118 PLR 593 : (1998) 1 SCALE 582 : (1998) 2 SCC 710 : (1998) 1 SCR 830 : (1998) AIRSCW 769 : (1998) 2 Supreme 478