Important Judgment on CPC Part 2

Important Judgment on CPC Part 2

Important Judgment on CPC Part 2

Appeals-Section 100 of CPC

  • Koppi Setty v. Ratnam. V. Pamarti Venka 2009 RLR 27 (NSC)- Section 100- Substantial Question of Law

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

  • Chunnilal v. Mehta vs. Century Spining and Manufacturing Co. Ltd., AIR 1962 SC 1314 Section 100 (Second Appeal)

Facts of the case- Much before the expiry of contractual period, the respondent company removed the appellants as managing agent. The appellants filed a suit in the Bombay High Court Claiming damages. The H.C decided in favor of the respondent company. The Appellants moved to SC by special leave.

Issue- Whether the construction of a document of title which is foundation of the rights of the parties raises a question of law and the interpretation of such document raises a substantial question of Law?

Observations: a) Not disputed that this is a Question of law since what Appellant 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 and so, in not giving the Certificate it was wrong.

  1. 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
  2. It directly and substantially affects the rights of the parties. It need not be a question of general importance.
  3. 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.
  4. 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 )

Decision- 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 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.

  • Gill & co. v. Bimla Kumari, 1986 RLR 370 Section 107, Rule 27 of Order XLI of the Code

Facts of the case- Eviction notice to M/S Gill & Co on grounds of

  1. non-payment of rent;
  2. misuse,
  3. bonafide requirement as residence for herself and members of her family;
  4. Sub-letting.

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

Decision- 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 re- appreciate 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 re- assess the evidence afresh and it was bound by the decision of the Tribunal on questions of fact.


  • Mahant Ram Das vs. Mahant Ganga Das, AIR 1961 SC 882-Section 148, 149 & 151

Facts of the case- 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 was dismissed by the High court.

Issue- 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?

Decision- the Apex court set aside the order of the High court not to enlarge the time, and held that the High court could have exercised its powers first under S. 148 and then under s. 151, CPC.

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

Facts of the case-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.

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

Observations: 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.

Decision- 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.

  • Jai Jai Ram Manohar Lal v. National Building Material Supply Co., AIR 1969 SC 1267- 6 Rule 17

Facts of the case- Manohar lal commenced an action against the defendant. The action was initiated in the name of “Jai Jai Ram Manohar Lal” which was the name in which the business was carried on. The plaintiff applied for leave to amend the paint.

Issue- Whether there should be an amendment or not really turns upon whether the suit is brought is the name of a non- existent person or whether it is merely a misdescription of existing persons.

Observations: The plaintiff was carrying on business as commission agent in the name of “Jai Jai Ram Manohar Lal.” The Plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged. He says he sued on behalf of the family in the business name. There is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bonafide mistake, the court has no power to grant leave to amend the plaint.

Decision- The name in which the action was instituted was merely a misdescription of original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted. The order passed by the Trial court in granting the amendment was clearly right, and the High court was in error in dismissing the suit on a technically wholly unrelated to the merits of the dispute.

  • M/S Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484- 6 Rule 17

Facts of the case-Appellant-plaintiff m/s Ganesh Trading Co., Karnal, had filed a suit through Shri jai Prakash, a partner of that firm, based on a promissory note. It was asserted that the suit was incompetent for want of registration of the firm and was struck by the provisions of s.69 of the Indian Partnership Act. The Plaintiff filed an amendment application wherein it was stated that the plaintiff had “inadvertently omitted certain material facts which are not (now) necessary to incorporate in the plaint so as to enable the court to consider and decide the subject matter of the suit.”

Observations: Procedural law is intended to facilitate and not to obstruct the course of substantive justice.

Decision-The suit having been instituted by one of the partners of a dissolved firm the mere specification of the capacity in which the suit was filed could not change the character of the suit or the case. It made no difference to the rest of the pleadings or to the cause of action. Indeed, the amendment only sought to give notice to the defendant of the facts which the plaintiff would and could have tried to prove in any case. This notice was being given, out of abundant caution, so that no technical objection may be taken that what was sought to be proved was outside the pleadings.

  • Dalip Kaur v. Major Singh, AIR 1996 P & H 107-“Principles were laid down while dealing with application of amendment”- O.6 Rule 17.

Facts of the case- The plaintiff filed an application under O.6 Rule 17 seeking amendment of the plaint by making a prayer for declaring the judgement and decree passed in civil suit entitled Major Singh v. Balbir Kaur as null and void and ineffective against the rights of the plaintiff.

Observations: The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various high courts and Supreme Court of India. Principles were laid down while dealing with application of amendment”

Decision- The amendment does not defeat any legal right allegedly having accrued to the opposite party and the delay in filing the petition for amendment can properly be compensated by costs.

  • K. Narayan Pillai v. Paramesw aran, (2000) 1 SCC 712- O.6 Rule 17

Facts of the case- The respondent- plaintiff filed a suit against the appellant–defendant praying for the grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground of his being a license.

Observations: The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various high courts and Supreme Court of India.

Decision- The appellant- defendant is permitted to amend the written statement to the extent of incorporating the plea of his entitlement to the benefit of s. 60(b) of the Indian Easements Act, 1882 only subject to his paying all the arrears on account of licence fee and costs assessed at Rs.3000 within a period of one month from the date the parties appear in the trial court.

  • Saleem Bhai v. State of Maharash tra, AIR 2003 SC 759- 7 Rule 11

Facts of the case-

Issue- Whether an application under O.7 Rule 11 ought to decided on the allegations in the plaint and filing of the written statement by the contesting defendant is irrelevant and unnecessary?

Observations: O.7 Rule 11 makes it clear that the relevant facts which need to be looked into for deciding an application there under are the averments in the plaint.

Decision- Therefore a direction to file the written statement without deciding the application under O.7 Rule 11 cannot but be procedural irregularity touching the exercise of the jurisdiction by the trial court. So order therefore suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity.



  • Sangra m Singh v. Election Tribunal, AIR 1955 SC 425- 9 Rule 6

Facts of the case-The defendant and his counsel both fail to appear before the Election Tribunal, as a consequence of which the Judge permits ex parte proceedings. The defendant and his counsel appeared on fourth hearing and insist that not only the order to proceed ex parte be reversed but the defendant should also be permitted to cross-examine witnesses of the plaintiff who were examined in his absence.

Issue- Whether ex parte proceedings means total debarring of the defendant to appear before the court on any subsequent date or it merely means that the defendant may appear on a future date, however, without any right to undo what prejudice has been caused to his interest in the ex parte proceedings ?

Observations: The SC observed as:

1)Ex parte proceedings do not mean that the defendant cannot be allowed to appear at all in the subsequent proceedings of the Suit.

2)If a party does not appear on “the day to which the hearing of the suit is adjourned”, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.

3)An omission to appear in response to summons carriers no penalty in the strict sense.

4)No form or procedure should ever be permitted to exclude the presentation of a litigant’s defence.

5)The proceedings that affect their lives and properly should not continue in their absence and that they should not be precluded from participating in them.

Decision- The SC held that though the appellant cannot be relegated to the same position as he has failed to show good cause, he cannot be denied his right to contest and, be present on subsequent dates.

  • Rajni Kumar v. Suresh Kumar malhotra, 2003 (3) SCALE 434- 9

Facts of the case-1.In this case, the appeal was filed from the judgement and order of the High Court of Delhi in the year 2001. In Delhi, the appellant cum tenant had taken a residential flat on rent from the respondent cum landlord for a period of nine months under an agreement of lease in writing. After the expiry of the tenancy, she continued to occupy the said premises as tenant for a total of around four years. It was alleged that the appellant did not pay the electricity and water consumption charges for the said period.

  1. The respondent filed a case under Order 36 of CPC in Civil court for the recovery of electricity and water consumption charges for the period. The civil court noted the fact that the summons were sent via registered post to the appellant, proceeded with the case and decreed the suit ex parte.
  2. The appellant, however, filed application under Rule 4 of Order 37 C.P.C. in the trial Court to set aside the ex parte decree. The application was dismissed as no special circumstances were stated in the petition both in record to there being illegality in deeming service of summons for judgment on the appellant as well facts sufficient to entitle him to defend the suit. Aggrieved by the order of the trial court, the appellant appealed in the High Court, which was also dismissed in the year 2001.
  3. The appellant’s counsel contended that there was no proof or record to show that any notice by registered post with acknowledgement due was issued to the appellant by the respondent who had taken the notice from the court but did not file any proof of issuing the notice to the appellant, therefore, there was special reason for the appellant not to appear in response to the summons for judgment.
  4. The respondent submitted that nowhere in her application had the appellant stated anything about her defence to the suit and therefore the order under challenge was rightly passed by the courts below.

Issue-Whether the High Court committed jurisdictional error in declining to set aside the ex parte decree on the application of the appellant under Rule 4 of Order 37, on the ground that he failed to disclose facts sufficient to entitle him to defend the suit?

Observations: 1.The court observed that a careful reading of Rule 4 shows that it empowers, under special circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree and grant one or both of the following reliefs, if it seems reasonable to the court so to do and on such terms as the court thinks fit: (i) to stay or set aside execution, and (ii) to give leave to the defendant (a) to appear to the summons, and (b) to defend the suit.

  1. The expression ‘special circumstances’ is not defined in C.P.C. nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstances.
  2. In this case, though appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.
  3. In an application under Order 9 Rule 11, if a defendant is set ex parte and that order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex parte. But an application under Order 9 Rule 13 could be filed on any of the grounds mentioned thereunder only after a decree is passed ex parte against defendant. If the court is satisfied that (1) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit was called for hearing, it has to make an order setting aside the decree against him on such terms as to cost or payment into court or otherwise as it thinks fit and thereafter on the day fixed for hearing by court, the suit would proceed as if no ex parte decree had been passed.
  4. The Supreme Court observed that Rule 4 of Order 37 is different from Rule 13 of Order 9. The court observed that Rule 4 of Order 37 specifically provides for setting aside decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37. In this case, an application under Rule 4 of Order 37 is filed to set aside a decree and it is not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. It was also observed that in a suit under Order 37, the procedure for appearance of defendant is governed by provisions of Rule 3 thereof.

Decision-The Supreme Court did not find any illegality in the order under challenge to warrant interference. The court observed that liability in this case does not arise out of a commercial transaction; therefore, the court has reduced the rate of interest. Hence, the Supreme Court made some modifications in the trial court’s judgment and dismissed the appeal.

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Bhupendra Sharma

"Bhupendra Sharma is a practicing lawyer at Rajasthan High Court who completed his graduation from the University of Rajasthan. He has pursued his LLM from Acharya Nagarjuna University. He is also a degree holder in Master of Education and Master of Business Administration."