Replication and stages of pleadings in a civil suit

1.    Delhi: Anant Construction v. Ram Niwas, 1994 (31) DRJ 205 : on replication. Holds that once Court allows replication, it becomes part of the pleading. We have been allowed so by 29.10.2014 order.

2.    Bombay: Mohanraj v. Kewalchand, 2007 (1) Mh LJ 691, para 8: document even if not entered in list of reliance cannot be ignored unless the otherside establishes prejudice.

3.    Delhi: Moti Ram v. Baldev Krishan , 15 (1979) DLT 90, pg 92: Replication is permitted by court forms part of the pleading.

4.    Punjab: Sharda Rani v. Malik Yashpal, (1964) 66 PLR 1126, para 7: when document is referred to and relied upon in the pleadings the contents thereof can be construed as part of pleading.

 

 

Withdrawal without Liberty

Mario Shaw v. Martin Fernandez, 1995 SCC OnLine Bom 313: (1996) 1 Mh LJ 564

 

Or 23, R. 1(4) – Withdrawal of dispute with liberty to file fresh proceedings – if application is made for withdrawal of proceedings with liberty to file fresh proceedings, it is not open for the Court to grant permission only for withdrawal without liberty to institute proceedings though it is open for the Court to reject such application.

 

 

Absence of Co-Owner doesnt prejudice the case of other co-owners to sue

In Smt. Kanta Goel v. B.P Pathak, AIR 1977 SC 1599 their Lordships, whilst reiterating the view in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, observed that the law had been put beyond all doubt that the absence of one of the other co-owners on the record does not in the least disentitle the plaintiff co-owner from suing and succeeding in the proceeding for the eviction of a tenant. 

Inherent jurisdiction and Or 39

Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527] held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39, Code of Civil Procedure.

Inherent Right of Procedural Review

AIR 1999 Cal 29  Ratanlal Nahata v. Nandita Bose

Every court has inherent right of procedural review, for substantive review power is required

Interim Protection while withdrawing / dismissing appeal

G.E. Power Controls India v. S. Lakshmipathy [(2005) 11 SCC 509 : 2006 SCC (L&S) 392] .)

Ajay Mohan v. H.N. Rai, (2008) 2 SCC 507

 

Ordinarily, a court, while allowing a party to withdraw an appeal, could not have granted a further relief.

 

 

Hotel Queen Road (P) Ltd. v. Ram Parshotam Mittal, (2014) 13 SCC 646 : (2014) 5 SCC (Civ) 747 : 2013 SCC OnLine SC 624 at page 650

16. In view of the aforestated judgments, it is very clear that if a petition is not maintainable and is ultimately withdrawn, the court should not continue interim relief for a period beyond withdrawal of the writ petition. However, the aforestated observation would not apply to a case where the matter is heard on merits and after considering the facts of the case the court permits withdrawal of the case. In such a case, the court is at liberty to extend the interim relief or can grant interim relief for a limited period after recording reasons for the same.

 

Interim relief can only be in aid and as ancillary to main relief

In the case of State of Orissa v. Madan Gopal Rungta, A.I.R. 1952 S.C. 12, the Constitution Bench of the Supreme Court clearly spelt out contours within which the interim relief can be granted. The Court said that:

“an interim can be granted only in the aid of, and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting of such a relief ipso factothe temporary relief of the same nature cannot be granted.”

 

Order passed without jurisdiction can be challenged even after the period of limitation

Singham Chetty v. State of T.N., 2001 (5) SCC 700

Interim Bail to be considered on the same day

 Sukhwant Singh v. State of Punjab, (2009) 7 SCC 559 at page 560

3. When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra [(2008) 16 SCC 14 : JT (2008) 11 SC 609] . Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there.

 

4. In the present case, if the petitioners surrender before the court concerned and makes a prayer for grant of interim bail pending final disposal of the bail application, the same shall be considered and decided on the same day.

Undertaking to Pay Damages - not contemplated in law

Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1 at page 15

26. But the Code nowhere authorises or empowers the court to issue a direction to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit. The Code also does not contain any provision to assess the damages payable by a plaintiff to the defendant, when the plaintiff's suit is still pending, without any application by the defendant, and without a finding of any breach or wrongful act and without an inquiry into the quantum of damages. There is also no contract between the parties which requires the appellant to furnish such undertaking. None of the provisions of either the TP Act or the Specific Relief Act or any other substantive law enables the court to issue such an interim direction to a plaintiff to furnish an undertaking to pay damages. In the absence of an enabling provision in the contract or in the Code or in any substantive laws a court trying a civil suit, has no power or jurisdiction to direct the plaintiff, to file an affidavit undertaking to pay any specified sum to the defendant, by way of damages, if the plaintiff does not succeed in the suit. In short, law does not contemplate a plaintiff indemnifying a defendant for all or any losses sustained by the defendant on account of the litigation, by giving an undertaking at the time of filing a suit or before trial, to pay damages to the defendants in the event of not succeeding in the case.

Importance of Procedures (Criminal Law - Preventive Detention)

Rekha v. State of T.N., (2011) 5 SCC 244 at page 257

38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled from long centuries of concrete experiences.

Why Litigant in Person may not be effective

Rekha v. State of T.N., (2011) 5 SCC 244 at page 252

16. The importance of a lawyer to enable a person to properly defend himself has been elaborately explained by this Court in A.S. Mohammed Rafi v. State of T.N.[(2011) 1 SCC 688 : (2011) 1 SCC (Cri) 509 : AIR 2011 SC 308] and in Mohd. Sukur Ali v. State of Assam [(2011) 4 SCC 729 : JT (2011) 2 SC 527] . As observed by Mr Justice Sutherland of the US Supreme Court in Powell v. Alabama [77 L Ed 158 : 287 US 45 (1932)] (US p. 69), "[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law", and hence, without a lawyer he may be convicted though he is innocent.

Sanction after retirement

Chittaranjan Das v. State of Orissa, (2011) 7 SCC 167 at page 170

14. We are of the opinion that in a case in which sanction sought for is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of the public servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility.

 

 

 

Permission to file appeal / SLP

Jatan Kumar Golcha v. Golcha Properties, (1970) 3 SCC 573, para 83. - a person who is not a party to the suit may challenge it appeal with leave of the court and such leave should be granted if he would be prejudicially affected.. 

An order passed by mistake and ignorance can be reviewed

G. Srinivas v. Govt. of A.P., (2005) 13 SCC 712 at page 718

20. An order passed by mistake and ignorance of the relevant facts indisputably can be reviewed, if inter alia, it is found that a fraud was practised or there was wilful suppression on the part of the appellant.

 

Treating Ordinary Writ as " PIL "

Hindustan Antibiotics Ltd. v. Parenteral Drugs (India) (P) Ltd., (2001) 1 SCC 715 at page 719

6. Admittedly neither of the parties came to Court with a case of the nature as has been depicted above. While it is true that the observations of the Court as the one noticed above, are not as strictly warranted in the facts but one need not fail to appreciate that the law courts exist for the society and in the event of there being any social problem it would be well-within the domain of the law court to take such step or steps as they may deem fit and appropriate and this is so in spite of the fact that the lis between the parties does not warrant such a conclusion. But in the matter in issue by reason of the long lapse of time the whole exercise has become totally infructuous: Eleven years have passed and the State, however, has not taken any steps in terms thereof, prior to the obtaining the order of stay from this Court.

 

Permission to file SLP

Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54 at page 74

45. We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.

 

Appointment to Constitutional Post is not service matter

State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 : (2013) 2 SCC (L&S) 1 : 2013 SCC OnLine SC 162 at page 47

79. This being the position, it is not possible to say that the Chairperson of the Public Service Commission does not occupy a constitutional position or a constitutional post. To describe the appointment to a constitutional post generically or even specifically as a “service matter” would be most inappropriate, to say the least.

 

Jurisdictional Error if the Court interferes with a contract and does not consider the rights and obligations of the parties

Soma Isolux NH One Tollway (P) Ltd. v. Harish Kumar Puri, (2014) 6 SCC 75

Writ Petition against a judgment

Mohd. Aslam v. Union of India [(1996) 2 SCC 749] a writ petition under Article 32 of the Constitution was filed seeking reconsideration of the judgment rendered by this Court on the ground that the said judgment is incorrect. Rejecting the prayer, this Court held that Article 32 of the Constitution is not available to assail the correctness of the decision on merit or to claim its reconsideration.