Judgements of Civil Procedure Code For class B.A.& B.COM LLB 6" semester NDMC V. Satish Chand AIR 2003 SC 3137 The question for consideration is regarding the maintainability of a civil suit to challenge assessment and levy of property tax on a property. We find that a liability tor payment of tax is created by the Punjab Municipal Corporation Act, 1911. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute. So special power to adjudicate the matter is given to the forum as provided 84 of Punjab municipal Act. So civil court is expressly barred to take the congnigence. So main issue is to consider the scope of section 9 of civil procedure code. Law Point: 1. The jurisdiction of civil courts can be excluded by an express provision of law or aclear intendment in such law. 2. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure’ 3. Tf the appropriate authority has been given the jurisdiction to determine the nature of the transaction and proceed to levy a tax in accordance with its decision, even it such issue is erroneously determined by the authority, the tax levied by it in accordance with its decision cannot be said to be ‘withoutjurisdiction’. Brief Facts: 1. Respondent owns a basement in Property No.3, Prithvi Raj Road, New Delhi. The appellant is a statutory body responsible for discharging civic functions in specified areas in the city of Delhi. The appellant is authorized to levy taxes including property tax. The said property was assessed to property tax by the appellant. According to respondent the basement cannot be put to use because it gets filled up with sub-soil water. Therefore, it could not be assessed to property tax and no tax could be levied. 2. Inspite of this, the appellant assessed the said property to property tax. It was further alleged by the respondent that objections filed by him against the assessment of the said property to property tax had been rejected by the appellant and a notice of demand had been sent regarding arrears of property tax. This demand included arrears for certain earlier period even though the same had been stayed by civil court in separate proceedings. 3. Respondent filed a suit for permanent injunction stating that the action of the appellant in assessment of the said property to property tax and demanding arrears of tax amounting to Rs.4,293.35 (Rupees Four thousand two hundred ninety three and paise thirty five) on this account was illegal and without jurisdiction. He made a prayer for a permanent injunction restraining the appellant trom recovering the said amount. Decision of Trial court: The Trial court upheld the objection regarding maintainability of the suit and thesuit was accordingly dismissed. However, appeal against said judgment was allowed by the Senior Civil Judge. Decision of High Court. The High Court dismissed the second appeal in limine. Legal Issues: + Whether the suit is barred under section 84 and 86 of the Punjab Municipal Act,1911? + Whether the jurisdiction under section 9 of the Civil Procedure Code, can be excluded with the Special Act? Ratio-deciendi of the supreme court in this case: Applying the criteria mentioned in Dhulabhai we are of the opinion that the Civil Court's jurisdiction is impliedly barred for the following reasons: 1. There is no pre-existing liability of tax under Common Law. The liability has been created by Punjab Municipal Corporation Act along with a remedy by way of an appeal to the Municipal Taxation Tribunal. Necessarily, where a party aggrieved by the decision of the authorities has to resort to the remedy provided under the Statute, civil courts’ jurisdiction is barred. 2. (the Act gives finality to orders passed by Municipal Taxation Tribunal, which shows the intendment of the legislature to exclude jurisdiction of civil courts. 3. The remedy provided by the Act is an adequate and effective remedy. We are not in agreement with the High Court that an appeal provided by the Statute against orders of assessments, containing an ‘onerous’ pre-condition of deposit of the entire amount in dispute, is not an effective remedy.10, i. Section 9 of the Code of Civil Procedure contains a provision regarding right of a party to file a civil suit. The opening words of the section give a very wide jurisdiction to the civil courts to try all suits of a civil nature. Where the Statute gives a finality to the orders of the special tribunals the Civil jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference trom the decision of the Tribunals. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. in either case the scheme of the particular Act must be examined because it is a relevant enquiry. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. It will be noticed from the provisions contained in Section 9 of the Code of Civil Procedure that a bar to file a civil suitmay be express or implied. Decision of Supreme Court: Section 84 & 86 of the said Act provides implied bar on the jurisdiction. It was held that the provision of appeal contained in Section 84(1) of the Act provided a complete remedy to a party aggrieved against the assessment and levy of tax. Section 86 provides that the remedy of appeal is the only remedy to a party to challenge assessment for purposes of property tax. No other remedy was available to a party i such circumstances. It follows that the remedy of civil suit is barred. 1. the civil suit filed by respondent challenging the assessment and demand of property tax by the appellant was clearly barred. 2, The judgments of the lower appellate court and the High Court are, therefore, set aside and the judgment of the trial court is hereby restored. 3. The civil suit tiled by respondent is dismissed as not maintainable. 4. The appeal is allowed. “ There will be no order as to costs. UshabalaShaheb Swami & Ors. V KiranAppasoSwami & Ors Cir Appeal No. 2019 of 2007 This judgment involve discussion about Order 6 Rule 17 of CPC , in which defendant claims amendment in written statement & sought a new paragraph in written statement. Trial court allowed such amendment but High Court rejected. in this judgment SC allowed the amendment & set aside order of HC and gave some guidelines regarding amendments. Law Points:1. In case of amendment in written statement the courts would be more liberal in allowing than that of plaint. 2. Defendant is entitled too take new defence and also to plead inconsistent stand. 3. Amendment of plaint and an amendment of written statement stands on different footing. 4, General principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or nature of claim applies to amendment of plaint- it has no counterpart in principle relating to amendment of the written statement 5. When amendment in pleading will be granted: a.) to determine the real question in controversy. b). it should not change the nature of case. c).t should serve the cause of justice. 6. it is mandatory to allow the amendment application before framing the issues. But after framing the issue court may use its discretionary power. Briet facts: 1. Plaintiit who is respondent no 1 in present appeal ( herein called plaintiff) has instituted suit for partition and separate possession of the suit properties. 2, Para no 2 of plaint stated that, suit properties originally belonged to Veersangaya (deceased) after his death Appasao(deceased) and Balasao(deceased) came into inherent suit properties. Appellant who are defendant in the suit, are heirs & legal representative of Balasao. Plaintiff inherited % shares of property jointly with defendant on death of appasao. Appellant reiused to partition and suit properties & deliver separate possession; plaintiff filed suit for partition & possession 3. Defendant file written statement in which he admits the fact that plaintiff with defendant were entitled to one half share in suit properties jointly with defendant on 28 February 2003.4. On 18 June,203 application filed for the amendment of the written statement in which it was stated that; plaintiff have no right, title and interest in joint family properties as they were illegitimate children of deceased Appasao and alleged that; “ Appasao was initially married to defendant no 1 as she had no issue, he took his second wife.” Thus appeilant(detendant) alleged that marriage between appasao and second wife was a nullity. Neither his 2 wife not his issues were entitled to any share in the suit properties. Decision of Civil Judge (Senior division): Allowed the application for amendment of written statement & matter was carried on by plaintiff before High Court. Decision of High Court: Set aside the order of trial court & rejected the application for amendment of written statement on ground that appellant had categorily admitted in their written statement the fact & it was not permissible for them to withdraw such admission by amendment of written statement as it amounts totally displacing the case of plaintiff. Contentions of Appellant: + Question of withdrawing the written statement could not raise as the appellant even after the amendment have kept the admission made in written statement. But only have added additional tacts which need to be proved. + By such amendment appellant had only sought to explain such admissions. + Amendment would only amounts to raising an inconsistent plea which is permissible in law & allowed in case of Baldev singh V Mandhar singh (C2006) + HC was not justified in reversing the discretionary order of trial court in exerciseof as supervisory jurisdiction under Article 227. Contentions of respondent. + Clear admission made by appellant in their written statement. + Cannot allow amendment which results totally displacing of the suit. + Amendment of written statement introducing an entirely- different & inconsistent case cannot be allowed which deprived out the plaintiff from his right. + High court was fully justified in rejecting the application tor amendment of written statement of appellant in exercise of its power under Article 227 of Constitution of India. Legal Issues: 1. Whether amendment sought for reliet was rightly rejected by HC or not? 2. Whether amendment would prejudicially affect the case? Observations of SC: + Itis clear from Orderé Rule 17 of CPC that court is conferred with power at any stage of proceeding to allow the alteration or amendment of the pleading. If it may be necessary for determining the question of controversy between the parties. + By amendment in written statement appellants have maintained the admission made by him in written statement but added a proviso or condition that related to. the legitimacy proof of the respondent only which does not attects the rights of the party as well as the case + Amendment of plaint & amendment of written statement stands on differentfooting. + For amendment in written statement, courts would be more liberal in allowing than that of plaint. + Section 115 of CPC also states that even the admission can be explained & even inconsistent pleas could be taken in the pleading it is allowed to amend the written statement. + Decision appeal is allowed & order of HC rejecting yithe prayer for amendment of written statement set aside. Trial court is directed to dispose of the suit within 6 months from the date of the communication of this order without granting any unnecessary adjournment to either of party no order as to costs. Quton of (nila v Adan Exports Ltd. ALR 2002 SC 126 These civil appeals are preferred by the Union of India and others challenging the judgment and orders of High Court of Gujarat at Akmedabad made in Special Civil Application wherein High court allowed the said civil applications and granted relief as prayed for by the petitioner therein. Facts: + In these appeals , principal contention involved pertains to entitlement of respondent herein to benetit of pass book Scheme found in Paragraph 54 of Import Export Policy introduced by appellants herein wed. 1 April,1995. in relation to certain credits to be given on exports of shrimps. + The petitioners carry on business of export and import of Ahmedabad. The orders for export and import are placed from and executed from Ahmedabad. The documents and payment for import and exports are sent/made at Ahmedabad. The credit of duty claimed in respect of exports were handled from Ahmedabadsince export orders were received at Ahmedabad and payments also received at Ahmedabad. The non granting and denial of utilization of credit in said pass book shail effect the business of petitioner at Ahmedabad. Respondent no 1 to 3 have regional offices at Ahmedabad. Issues: 1 Whether the High court of Gujarat at Ahmedabad has territorial jurisdiction to entertain the civil applications and to grant relief in favour of respondents? Contentions Appellant 11 is contended that the High Court at Ahmedabad did not have the territorial jurisdiction to entertain the special civil applications since no part of cause of action based on which applications were tiled arose within the territorial jurisdiction of High Court at Ahmedabad. It is contended that, “since Pass Book Licence was issued at Chennai by the designated authority at Chennai and the transactions concerning the said pass book were made from Chennai port and cause of action is lying at Chennai.” Therefore, it is the High Court at Chennai which alone had jurisdiction to entertain the applications as no part of cause of action had arisen within the territorial jurisdiction of High Court at Ahmedabad. Hence, the appellants had prayed for transfer of the case of High Court at Chennai. Contentions respondent: It is contended that it is incorrect to say that no part of cause of action arose within theterritorial jurisdiction of High Court at Ahmedabad. As on the basis of above said facts, it is contended that a substantial part of cause of action has arisen within the jurisdiction of this Honourable court. This Honourable Court has therefore, jurisdiction to entertain, try and dispose of this petition. Decision of High Court. Court held that each and every tact pleaded in the writ petition does not ipso tacto lead to the conclusion that those facts give rise to cause of action within the courts territorial jurisdiction unless those tacts pleaded are such which have nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to cause of action so as to confer territorial jurisdiction on the court concerned. It was also held that in order to conter jurisdiction on High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of cause of action do constitute a cause so as to empower the court to decide the dispute and the entire or part of it arose within jurisdiction. Observation: + According to Article226(2) of constitution, the High Court can exercise the jurisdiction in relation to territories within which the cause of action, wholly or in-part, arises. In order to conter jurisdiction on High Court to entertain writ petition or special civil application as in case, the High Court must be satistied from entire facts pleaded in support of cause of action that facts do constitute cause as to empower the court to decide a dispute which has, atleast in-part, arisen within jurisdiction. + The court having not proceeded to decide this question of territorial jurisdiction as contemplated under Order XIV Rule 2 CPC.+ Court found that the bank guarantee and the bond executed by the respondents, as a matter of fact, having nothing to do with cause of action that may arise to challenge the denial of benetit of the Pass Book Scheme. + It is observed that all the facts which the respondent are carrying has no connection either with the dispute that is involved in the applications or with the actions of the appellants impugned in the application. + twas held that judgment of court having no territorial jurisdiction. Therefore, it is to be set aside. + Further directed that Special Civil Application filed by respondent directed to be transferred to High Court of Madras at Chennai for disposal of case in accordance with law. Chekka Krishna Prasad’ V Kothappa 1998 (2) ALT IS. Introduction: This judgment involved discussion about Order 16 Rule6 of CPC. In which High Court (HC) held that trial court has power to summon document from the custody of 3+ party & there is no illegality in order of Trial Court. Law Points: 1. Any person may be summoned to produce a document without being summoned to give evidence and every person deemed to coupled with summons if the causes such document to be produced In court instead of personal attendance to produce the same. 2. There is not illegality or jurisdictional error in order of Trial Court, if Trial Court receive the document for which it summon instead of personal attendance to who summoned issue.Brief facts: + Respondent ie. Kothappa Rao filed suit against petitioner ie. Chekka Krishna Prasad for mere injunction claiming title over certain immovable property which is atin shed premises. + Petitioner also claimed title on the basis of the registered sale deed. But respondent challenge the validity of the said sale deed. Decision of Trial Court: Trial Court allowed petition to summon admission register and T.C. from EV Reddy College Kodad which reflects the age of the petitioner was minor on date of execution of sale deed. A revision petition filed before H.C. Contentions of petitioner. + Court has no authority to summon a document from custody of 3+ party. + Respondent can’t show the relevancy of the particular document for adjudication of rights of parties in the suit. Legal Issues: + Whether Trial Court has authority to summon a documen trom custody of third person? Observations of SC:1. Parties to the suit are at liberty to adduce oral & documentary evidence as per their choice to support their suit. 2. Question of relevancy shall be considered by court after they are tendered in evidence. 3. Ordert6 Rule 6 of CPC states that any person may be summoned to produce a document without being summoned to give evidence & person deemed to complied with summons if such document to be produced in court instead of personal attendance to produce the same. 4. Trial Court has no jurisdictional error or illegality. Decision: + Revision petition is dismissed. + Order of Trial Court is just & fair. Sunll Krishna V. Calcutta dmprovement Trust ALR 2001 Cal. 199 This Judgment deals with Section 22 and Article 55 of Limitation Act, 1963.This is suit for specitic performance of an agreement for sale of three plots of land; herein after reterred to as suit properties. This case also deals with Section 156 and Section 81 of Calcutta Improvement Act, 1911 Jaw points 1. Court states that not only the Article 55 of schedule of Limitation act but Section 22 of Limitation Act also applicable as this is the continuing cause of actionbecause in each and every day the breach is committed by defendant. 2, under section 22 a right to sue arise at every moment of the time during which the breach continue. the cause of action in such cases is said to be renewed de die in diem(trom day to day) 3. the court should keep in mind that the object of this section is to prevent multiplicity of suits and to enable one to be brought for loss suffered during the whole period the breach continued. Facts of the case: + One Mr. Asit Kumar Ghosh since deceased was offered by the defendant for purchase of said three plots of land in terms of Section 81 of the Calcutta Improvement Act, 1911 as the original offeree was the previous owner of the of the aforesaid plots of land which was previously acquired by the Calcutta Improvement Trust. + The original plaintitt namely Pallav Kumar Banerji , since deceased, and the present two plaintiffs filed the aforesaid suit in the capacity of joint executors in terms of last will dated 28 August, 1994 made and published by the said Asit Kumar Ghosh since deceased. + During the pendency of the suit, the original plaintitt No1 Pallav Kumar Banerji, died + The other two surviving executors are now continuing with this action. The defendant has entered appearance and filed written statement Issues. 1. Is the suit maintainable for non-compliance of mandatory provisions under Section 156 of Calcutta Improvement Act.1911? 2. Isthe suit barred by the provisions of Law of Limitation?3. Is the plaintiff entitled to get the relief as claimed in the plaint? 4, Whether the plaintiff has performed his part of obligation in completing the conveyance? 5. Whether the claim of the plaintiff is barred by the principles of waiver and ac-quiescence? Contentions (Plaintiff): + Itis contended that, up to stage of making offer to sell the aforesaid three plots of land if this exercise can be termed, to be an act purporting to be done under or falls within the provision and/or meaning of Calcutta Improvement Act,1911, + With regard to question of limitation, it is contended that Article 55 of the schedule of Limitation act was applicable in this case. There is no fixed time to execute conveyance sought to perform in the agreement and when there is no fixed time, the suit has to be brought within three years from date of refusal to perform agreement. + It is also contended that trom evidence and deposition of DW as well as the plaintitf that physical possession of property was not given to the plaintiffs or to. their predecessors-in-interest. + It is submitted that no notice is required to be served in this case as the claim of plaintitf is not based on and/or pursuant to any act which purports to have been done under this act. Contentions( Respondent): + Ivis contended that first of all the suit is not maintainable in view of non-service of statutory notice as required under Sectioni56 of aforesaid act. He contended that there must be notice followed by pleadings in the plaint as there is none inthe present case. $0, on the face of it the suit is liable to be dismissed. + It is further contended that the claim of plaintiff is barred by limitation as admittedly the agreement was concluded on or about 27° luly, 1965 whereas the suit has been filed in the year 1999. The suit should have been brought only within three years trom the date of execution of the aforesaid agreement. + Itis also contended that physical possession cannot be given as it had been given to the predecessor in interests of the plaintiffs. Therefore, question of passing decree for physical demarcation of property and delivery of physical possession thereot does not and cannot arise. + Incase of service of notice, it is contended that this purchase in exercise of pre-emption right has been made under the provision of the statute, This agreement was entered in exercise of power under Section 81 of said act. Therefore, notice is mandatory. Observations of court: 4. It is not accepted by court that offer to sell property under the provision of Section81 of the said act will not come within purview of aforesaid act ( Calcutta improvement act). Because the basis of agreement is offer and this will appear from the admitted document that the offer was made pursuant to said provision. It was held that the action taken by board is an cat purporting to be done under the provision of the aforesaid ( Calcutta Improvements Act, 1911). 5. Itwas further held that notice was required to be served under Section 156 upon the deiendant board. 6. Itwas observed that plaintiff has compiled with the provision of Section 156 as he admittedly served notice upon the board on 26- November, 1998. 7. Court further observed that suit is also not barred by the Limitation Act because it is observed by court that there is not stipulated date of performance ofcontract. The plaintiffs have performed their part of contract whereas the defendant has not. 4K Velusamy v. NV. Palauisamy C201) 1 SCO IS FACTS OF THE CASE 1. The respondent filed a suit for specific performance of a contract entered into by him and the appellant for a consideration of Rs 2,40,000. The respondent had already paid an advance of Rs. 1,60,000 and the appellant had agreed to execute the sale deed upon receiving the remaining amount within three months. 2. Accordingly, the respondent waited at the Sub-Registrar's office for the said execution and the appellant did not show up. The appellant contended that since the respondent is a money lender, a loan of Rs. 1,50,000 was taken from him in liew of blank signed papers signed by the appellant. 4 The appellant presented a compact disc containing recordings of calls i.e. electronically recorded evidence between the appellant, the respondent, and three other individuals involved in the case. These recordings were presented to prove the point that the agreement of sale was only made as a security for the Ioan. 5. The respondent resisted the application that these call recordings have been created by using mimicry artists and three individuals involved in the case. 6. The trial court denied admitting the evidence on the ground that the evidence has already been presented by both the parties and since arguments have beenconcluded, the application for admission of new evidence will only delay the matter. The same stance was taken by the High Court. JUDGMENT 1. The definition of evidenceu/s 3 of the Indian Evidence Act, 1872 r/w definition of electronic recordsu/s 2(1)(t) of the Information Technology Act, 2000 includes a compact dise containing an electronic record of a conversation. 2. As held by the Court in # Af Malkan’ v. State of Maharashtra (AIR 1973 SC 157), the electronically recorded conversation is admissible in the court if ~ 3. A contemporaneous electronic recording of a conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8. 4. The trial court and the High Court have not considered whether the evidence sought to be admitted will assist in clarifying the issue before the court. They dismissed the application mechanically on the ground that the case was at its final stage and the arguments have been concluded. 5. This was a fit case for the trial court to exercise discretionary powers u/s 151 CPC to accept the application presented for the admission of the said compact disc upon satisfaction that the said dise could not have been presented earlier. 6. The court may also listen to the recordings before accepting or rejecting the application tor admission. 7. The trial court was ordered to hear the matter on the basis of the judgment of this case.