Tag: Civildigest
Jurisdiction of the Courts and res judicata
Courts to try all civil suits unless barred —The Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Again A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Stay of the suit —No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending before competent Jurisdiction.
Res judicata —No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Bar to further suit —Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
Foreign Decree- A foreign judgment by competent jurisdiction shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title
Civil Procedure Code, 1908—Order 18, Rule 17—Recall and examination of witness—Power to recall any witness under Order 18, Rule 17 CPC can be exercised by Court either on its own motion or on an application filed by any of parties to suit—Such power is to be invoked not to fill up lacunae in evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during course of his examination—If evidence on re-examination of a witness has a bearing on ultimate decision of suit, it is always within discretion of Trial Court to permit recall of such a witness for re-examination-in-chief with permission to defendants to cross-examine witness thereafter. Error! No text of specified style in document. vs. Error! No text of specified style in document.
COURT FEES-The plaintiff had sued for a twofold declaration: (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwali and his brother were null and void and were ineffectual against the waqf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a “consequential relief.
Smt. Shrisht Dhawan Vs M/s. Shaw Brothers-Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens […]
Man Kaur (dead) by LRS. Vs Hartar Singh Sangha-Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the […]
Mange Ram Vs Brij Mohan and others[03-08-1983]-Whether a witness can be produced without being summoned through the Court and without his name being mentioned in the list of witnesses in Civil Suit? […]
Vidhyadhar Vs Mankikrao and another(17-03-1999)-When a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the […]
Vidyabai & Ors. Versus Padmalatha & Anr.-However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.
If a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether […]
Section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls with the category of aggrieved persons.
Whether the nominee specified in the National Savings Certificate, on the death of its holder, becomes entitled to the sum due under the certificate to the exclusion of all other persons?, or whether the amount of the certificate can be retained by him for the benefit of the legal heirs of the deceased?
Civil Procedure Code, 1908—Section 2(2)—Decree—Nullity—Decree obtained by fraud—Duty of litigant to come to the Court with true case and to prove it with true evidence—Withholding of vital documents in order to gain advantage over the other parties—The decree obtained by fraud is a nullity.
It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading.
False statement on oath-it is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice.
Civil Procedure Code, 1908—Order 12, Rule 6—Judgment on admission—Termination of lease—Non-payment of rent—Prayer for judgment on admission under Order 12, Rule 6 of CPC-Where controversy is between parties on an admission of non-payment of rent, judgment can be rendered on admission by Court—Club seeks to approbate and reprobate—Club was very negligent in pursuing its case—Doctrine of election squarely applies as Club has advanced inconsistent pleas—Club not entitled to any discretionary remedy—
JUDGMENT ON ADMISSION-It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant, by way of an appeal on merits.
Evidence Act, 1872—Sections 101 to 104—Burden of proof—Joint Hindu Family—Presumption of—A Hindu family is presumed to be joint unless proved to the contrary—The burden of proving the status of the family is on the person claiming the relief on the basis of such status—It is a question to be determined in each case.
Hindu Undivided Family-It is held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it is also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family.
Civil Procedure Code, 1908—Section 100 and 101—Appeal—Letters Patent Appeal—Scope of—A Division Bench hearing appeal against the Judgment of single Judge is not limited to question of law as in case of Second Appeal but whole matter is open in respect of both questions of law as well as fact.
Family arrangement—Implied arrangements—Conduct of members of family can be considered to ascertain that family arrangement in fact existed—Circumstances in which registration of family arrangement necessary, indicated.
FAMILY SETTLEMENT-the family settlement arrived at by the parties was oral, and the petition filed by them on August 7, 1956 before the Assistant Commissioner was merely an information of an already completed oral transaction. In other words, the petition was only an intimation to the Revenue court or authority that the matters in dispute between the parties had been settled amicably between the members of the family, and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement. Since the petition did not itself create or declare any rights in immovable property of the value of Rupees 100 or upwards, it was not hit by Sec. 17 (1) (b) of the Registration Act, and as such was not compulsorily registrable.
