Can a Court Allow a Time-Barred Amendment of Pleadings? Scope of Trial Court and First Appellate Court Powers Under Order VI Rule 17 CPC

Order VI Rule 17 CPC confers a wide discretionary power on civil courts to permit amendment of pleadings at any stage if the amendment is necessary for determining the real question in controversy between the parties. But this power is not unstructured: the court must weigh necessity, prejudice, limitation, due diligence, and the effect of the proposed amendment on the nature of the case.

A frequent question is whether a court can permit an amendment when the plea or relief sought to be introduced appears to be barred by limitation. The correct answer is: yes, in some cases; no, in others. There is no absolute prohibition against allowing a time-barred amendment, but a court should ordinarily decline such amendment when it introduces a fresh cause of action or a fresh relief that had already become barred on the date of the amendment application, because that would deprive the opposite party of a valuable accrued defence.

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Supreme Court: If a High Court strikes down a Central Act as unconstitutional, that decision would have effect throughout India, unless stayed or overruled by the Supreme Court.

 This question is rooted in the following observation of the Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India 2004 (6) SCC 254 : An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

The landmark Supreme Court judgment in Kusum Ingots & Alloys Ltd. v. Union of India (2004) clarified a crucial question of territorial jurisdiction of High Courts under Article 226 of the Constitution, particularly when challenging the validity of Central laws.

Key Facts and Issue:

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Supreme Court: Order II Rule 2 CPC Doesn't Mean Different Causes Of Action From Same Transaction Must Be Included In Single Suit

 In S. Nazeer Ahmed v. State Bank of Mysore and Ors. reported in   MANU/SC/7017/2007 : 2007:INSC:34 : (2007) 11 SCC 75, this Court categorically held that if the Defendant wishes to show that the causes of action were identical in both suits, it is necessary for him to have marked the earlier plaint in evidence and then make out that there was a relinquishment of a relief by the Plaintiff, without the leave of the Court. It was also stated that Order II Rule 2 is directed towards securing an exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they may arise from the same transaction. In other words, a number of causes of action may arise out of the same transaction and it is not the mandate of Order II Rule 2 that they should all be included in one suit. On the other hand, what is required is that every suit shall include the "whole of the claim" arising out of "one and the same cause of action". {Para 46}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 372-373 of 2025.

Decided On: 15.01.2025

Cuddalore Powergen Corporation Ltd. Vs. Chemplast Cuddalore Vinyls Limited and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation: 2025 INSC 73,MANU/SC/0071/2025.

Read full Judgment here: Click here.

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Supreme Court: Defendant must file pleadings of previous suit to prove the identity of the cause of action in the two suits so as to bar second suit as per O 2 R 2 of CPC

In order that a plea of a Bar Under Order 2 Rule 2(3) of the Code of Civil Procedure should succeed the Defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the Plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the Plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar Under Order 2 Rule 2 of the Code of Civil Procedure can be established only if the Defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the Appellant in the present suit as evidence in support of his plea Under Order 2 Rule 2 of the Code of Civil Procedure. The learned Trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the Appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar Under Order 2 Rule 2 of the Code of Civil Procedure was not maintainable.

 {Para 6}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 372-373 of 2025.

Decided On: 15.01.2025

Cuddalore Powergen Corporation Ltd. Vs. Chemplast Cuddalore Vinyls Limited and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation: 2025 INSC 73,MANU/SC/0071/2025.

Read full Judgment here: Click here.

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Supreme Court: Whether plaintiff will be barred to file second suit on the cause of action if he was not entitled to said relief at the time of filing of first suit?

V. The "entitlement to" along with the "availability of" the relief as a requisite in determining the applicability of Order II Rule 2.

72. The Privy Council in Mohammad Khalil Khan (supra) elaborated on the true import of Order II Rule 2 as follows:

Shortly stated Order 2, Rule 2, Code of Civil Procedure, enacts that if a Plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted. To apply the Rule to the facts of the case their Lordships will have to consider what was the cause of action in Suit No. 8, on which the Plaintiffs founded their claims, and whether they included all the claims which they were entitled to make in respect of that cause of action in that suit. For, if they failed to include all the claims, then by force of Order 2, Rule 2, they are precluded from including the claim omitted in the present Suit No. 2.

73. Order II Rule 2(1) reads that - "every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action...". Similarly, Order II Rule 2(3) reads that - "A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs...". It is necessary that the same intention also be read into Order II Rule 2(2) which reads that - "where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished". The phrase "any portion of his claim" must essentially be understood to mean any portion of his claim which he is entitled to make for the simple reason that there cannot be a deliberate or intentional relinquishment of any portion of a claim, if the Plaintiff was not entitled to it. Therefore, the true import of the bar Under Order II Rule 2 must be that it operates to preclude a Plaintiff from instituting a second suit, on the same cause of action, for a claim, any portion of a claim, or reliefs, which the Plaintiff was entitled to avail at the time of filing of the first suit.

74. There may arise a situation where the Plaintiff may be entitled to a relief but such a relief was not available at a certain point in time. In other words, that obtaining such a relief was impossible due to the circumstances which existed during the institution of the first suit. It is our opinion that, in such scenarios, Courts must give such an interpretation to the principles Under Order II Rule 2 that is not bogged down by mere technicalities.

75. We are in agreement with the view taken by the Rajasthan High Court in Ramjilal v. Board of Revenue, Rajasthan reported in   MANU/RH/0033/1964 : AIR 1964 Raj 114 wherein the High Court had opined that Order II Rule 2 does not require that a person must seek all the remedies to which he may be entitled to even though it would be impossible for him to obtain the remedy from the opposite party. Herein, it was not possible for the Plaintiff to obtain the relief of possession from the Respondent No. 2 in his initial suit since the Respondent No. 2 himself was put in actual possession of the property much after the institution of the first suit. In such circumstances, it could not be said that the Plaintiff had intentionally relinquished any portion of his claim or that he omitted to ask for a relief which he could otherwise obtain. The relevant observations are reproduced hereinbelow:

8. Now, in the present case, when the Petitioner filed the first suit on 14th August, 1946, his claim was only for a declaration to the effect that the adoption of Respondent No. 2 by Pusharam was invalid in law and for the relief that the adoption-deed should be cancelled. According to the admission of Respondent No. 2 himself he was not in possession of the property in respect of which the second suit was filed on 1st July, 1954. It cannot therefore, be said that the Plaintiff had intentionally relinquished any portion of his claim or that he omitted to ask for a relief which he could get from Respondent No. 2. Even if he had sued for possession against Respondent No. 2, he could not obtain a decree for possession against a person who was admittedly not in occupation of the same. It would, therefore, have been futile on the part of the Petitioner to sue for possession against Respondent No. 2 at that time. Order 2, Rule 2 Code of Civil Procedure does not require that a person must seek all the remedies to which he may be entitled even though it be impossible for him to obtain them from the opposite party. It is true that Respondent No. 2 had obtained a decree for possession against the landlords on 18th February, 1946, i.e., about six months prior to the institution of the Petitioner's suit, but the Petitioner was not a party to that suit. It had nowhere been mentioned in the judgment of the learned Members of the Board of Revenue if the Petitioner was even aware of the decree which Respondent No. 2 had obtained against the landlords Moreover, even if it be assumed for the sake of argument that the said decree was in the knowledge of the Petitioner, then too, he could not sue for possession, because Respondent No. 2 was not put in actual possession of the property in execution of the decree. It was about three years after, i.e., on 11th March, 1949 that Respondent No. 2 got possession of the property. In our opinion, the learned Members committed an error, which is patent on the face of the record, in holding that the Petitioner ought to have sued for possession at the time when he filed the first suit on 14th August, 1946.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 372-373 of 2025.

Decided On: 15.01.2025

Cuddalore Powergen Corporation Ltd. Vs. Chemplast Cuddalore Vinyls Limited and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation: 2025 INSC 73,MANU/SC/0071/2025.

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Bombay HC: Whether the court deciding application for rejection of plaint is expected to verify whether facts showing cause of action are correct or not?

Cause of action

12. There are two aspects :-

(a) Certain facts are pleaded which suggest cause of action.

(b) Facts may not be correct.

13. While dealing with clause (a), Court has to see whether the plaint denotes cause of action or not. The trial Court is not expected to verify whether these facts are correct or not.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 470 of 2024

Decided On: 21.10.2024

Amruta Sandeep Mahajan Vs. Tukaram Kisan Thite and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation:  MANU/MH/6768/2024,2024:BHC-AS:42648.

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Can the court permit the substitution of one distinct cause of action for another by amendment of plaint?

 Principles governing amendment of pleadings are well-settled. Order VI Rule 17 C.P.C. deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well-settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal approach and not a hyper- technical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings (See: L.J. Leach & Co. Ltd. and Anr. v. Jardine Skinner & Co. MANU/SC/0009/1957 : [1957]1SCR438 , Smt. Ganga Bai v. Vijay Kumar and Ors. MANU/SC/0020/1974 : [1974]3SCR882 and B.K. Narayana Pillai v. Parmeswaran Pillai and Anr. MANU/SC/0775/1999 : AIR2000SC614 Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung A.I.R. 1922 PC 249 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings:

All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. {Para 19}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6114 and 6115 of 1999 and 1005 and 1006/2000

Decided On: 25.09.2006

State of A.P. and Ors.  Vs. Pioneer Builders, A.P.

Hon'ble Judges/Coram:

H.K. Sema and Devinder Kumar Jain, JJ.

Author: Devinder Kumar Jain, J.

Citation: MANU/SC/8520/2006

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Whether it is necessary to take objection as to non-joinder of necessary party before trial court?

 On the other hand, when the Plaintiff itself persists in not impleading a necessary party in spite of objection, the consequences of non-joinder may follow. However, the said objection should be taken in the trial Court itself so that the Plaintiff may have an opportunity to rectify the defect. The said plea cannot be raised in this Court for the first time. This position has been reiterated in State of U.P. v. Ram Swarup Saroj MANU/SC/0153/2000 : (2000) 3 SCC 699. We hold that a plea as to the non-joinder of the party cannot be raised for the first time before this Court if the same was not raised before the trial Court and has not resulted in failure of justice. In the case of non-joinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on hand, for the disposal of application filed for rejection of the plaint under Order VII Rule 11, 2nd Defendant is not a necessary party, hence he need not be impleaded. Accordingly, we reject the said objection of the Respondent herein.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4841 of 2012.

Decided On: 03.07.2012

 The Church of Christ Charitable Trust and Educational Charitable Society  Vs. Ponniamman Educational Trust 

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: MANU/SC/0515/2012,(2012) 8 SCC 706.

Read full Judgment here: Click here

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Whether the party against whom no relief is claimed is necessary party to the application?

 Learned senior Counsel for the Respondent vehemently contended that inasmuch as in the application for rejection of plaint, the 1st Defendant has not impleaded the 2nd Defendant, the said application is liable to be dismissed on the ground of non-joinder of the 2nd Defendant, who is a necessary party.

In the case of non-joinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on hand, for the disposal of application filed for rejection of the plaint under Order VII Rule 11, 2nd Defendant is not a necessary party, hence he need not be impleaded. Accordingly, we reject the said objection of the Respondent herein.

18. Apart from the above aspect, in the case on hand, the application for rejection of the plaint of the Appellant-1st Defendant seeks no relief against the Respondent herein-2nd Defendant. It is settled legal position that a party against whom no relief is claimed in the application is not a necessary party at all.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4841 of 2012.

Decided On: 03.07.2012

 The Church of Christ Charitable Trust and Educational Charitable Society  Vs. Ponniamman Educational Trust 

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: MANU/SC/0515/2012,(2012) 8 SCC 706.

Read full Judgment here: Click here

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Can the Court reject a plaint for a suit of specific performance of contract if the plaintiff has failed to mention the date of the agreement as mandated by Appendix A, Form 47 and 48 of the CPC?

 Forms 47 and 48 of Appendix A of the Code

11. Mr. K. Parasaran, learned senior Counsel by taking us through Form Nos. 47 and 48 of Appendix A of the Code which relate to suit for specific performance submitted that inasmuch as those forms are statutory in nature with regard to the claim filed for the relief for specific performance, the Court has to be satisfied that the plaint discloses a cause of action. In view of Order VII Rule 11(a) and 11(d), the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. The statutory forms require the date of agreement to be mentioned to reflect that it does not appear to be barred by limitation. In addition to the same, in a suit for specific performance, there should be an agreement by the Defendant or by a person duly authorized by a power of attorney executed in his favour by the owner.

We have already mentioned Form Nos. 47 and 48 of Appendix A and failure to mention date violates the statutory requirement and if the date is one which attracts the bar of limitation, the plaint has to conform to Order VII Rule 6 and specifically plead the ground upon which exemption from limitation is claimed. It was rightly pointed out on the side of the Appellant that in order to get over the bar of limitation all the required details have been omitted.

21. In the light of the above discussion, in view of the shortfall in the plaint averments, statutory provisions, namely, Order VII Rule 11, Rule 14(1) and Rule 14(2), Form Nos. 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the 1st Defendant, the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the Plaintiff was given to the 2nd Defendant in the suit and rightly rejected the plaint as against the 1st Defendant. Unfortunately, the Division bench failed to consider all those relevant aspects and erroneously reversed the decision of the learned single Judge. We are unable to agree with the reasoning of the Division Bench of the High Court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4841 of 2012.

Decided On: 03.07.2012

 The Church of Christ Charitable Trust and Educational Charitable Society  Vs. Ponniamman Educational Trust 

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: MANU/SC/0515/2012,(2012) 8 SCC 706.

Read full Judgment here: Click here

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Whether the court can reject the plaint if plaintiff has failed to produce document on which cause of action is based?

 In the case on hand, the Plaintiff-Respondent to get a decree for specific performance has to prove that there is a subsisting agreement in his favour and the second Defendant has the necessary authority under the power of attorney. Order VII Rule 14 mandates that the Plaintiff has to produce the documents on which the cause of action is based, therefore, he has to produce the power of attorney when the plaint is presented by him and if he is not in possession of the same, he has to state as to in whose possession it is. In the case on hand, only the agreement between the Plaintiff and the second Defendant has been filed along with the plaint under Order VII Rule 14(1). As rightly pointed out by the learned senior Counsel for the Appellant, if he is not in possession of the power of attorney, it being a registered document, he should have filed a registration copy of the same. There is no such explanation even for not filing the registration copy of the power of attorney. Under Order VII Rule 14(2) instead of explaining in whose custody the power of attorney is, the Plaintiff has simply stated 'Nil'. It clearly shows non-compliance of Order VII Rule 14(2). {Para 12}

13. In the light of the controversy, we have gone through all the averments in the plaint. In paragraph 4 of the plaint, it is alleged that the 2nd Defendant as agreement holder of the 1st Defendant and also as the registered power of attorney holder of the 1st Defendant executed the agreement of sale. In spite of our best efforts, we could not find any particulars showing as to the documents which are referred to as "agreement holder". We are satisfied that neither the documents were filed along with the plaint nor the terms thereof have been set out in the plaint. The abovementioned two documents were to be treated as part of the plaint as being the part of the cause of action. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4841 of 2012.

Decided On: 03.07.2012

 The Church of Christ Charitable Trust and Educational Charitable Society  Vs. Ponniamman Educational Trust 

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: MANU/SC/0515/2012,(2012) 8 SCC 706

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Whether the court must consider document filed along with plaint for deciding application for rejection of plaint?

12.2 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.

12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

12.4 Order VII Rule 14(1) provides for production of documents, on which the Plaintiff places reliance in his suit, which reads as under:

Order 7 Rule 14: Production of document on which Plaintiff sues or relies.-

(1) Where a Plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the Plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the Plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this Rule shall apply to document produced for the cross examination of the Plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.

Having regard to Order VII Rule 14 Code of Civil Procedure, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application Under Order VII Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9519 of 2019 

Decided On: 09.07.2020

Dahiben Vs.  Arvindbhai Kalyanji Bhanusali (D) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao and Indu Malhotra, JJ.

Author: Indu Malhotra, J.

Citation: MANU/SC/0508/2020, (2020) 7 SCC 366

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Can a court reject a plaint U/S 41(h) of the Specific Relief Act if the relief sought cannot be granted under the said Act?

In so far as the second submission of the learned counsel for the petitioners as to the legal bar to file a suit under Section 38 read with Section 41(h) of the Specific Relief Act, it is to be noted that Specific Relief Act is only an equitable and common relief or remedy and does not deal with any cause of action. Therefore, a plaint cannot be rejected on the ground that the relief sought for in the suit cannot be granted under the provisions of the Specific Relief Act. This is more so when an element of fraud on the part of the defendants is also alleged by the plaintiff. 

The averments of the plaint specifically disclose a fraud on the part of the defendants which itself is sufficient cause of action for the plaintiff to maintain a suit. Therefore, I do not agree, with the contention of the learned counsel for the petitioners that in view of the legal bar under Section 38 read with Section 41(h) of the Specific Relief Act, the suit is not maintainable. Accordingly, I reject the said contention also. {Para 13}

 IN THE HIGH COURT OF MADRAS

C.R.P. No. 3928 of 1999 and C.M.P. No. 22015 of 1999

Decided On: 31.01.2001

 K. Thakshinamoorthy Vs.  State Bank of India

Hon'ble Judges/Coram:

D. Murugesan, J.

Citation: MANU/TN/0066/2001

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Whether second partition suit will be barred by res judicata if first partition suit was dismissed for default?

The suit filed by the Plaintiff in 1962, based on the settlement deed executed by her husband in her favour and the sufferance of the dismissal of the suit, will not, in any way, be a bar for making a claim for her share, if any, of the family property, if otherwise permissible under law. As succinctly addressed by the first appellate court, the 1962 suit for the entire property was based on a settlement deed and it was a suit for possession. Whereas, the 1988 suit for partition was for Plaintiff's one-half share in the property based on her birth right. Cause of action is entirely different. {Para 18}

19. Thus, the High Court in our opinion is not right on the point of res judicata.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016

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Can a person file a new suit for partition if he had previously withdrawn suit for partition unconditionally?

 This Court agrees with the law laid down in

the judgment in the case of Laxmanrao Mahadeorao

Nikose (supra), wherein it is categorically held that

cause of action for partition being a recurring one, a

subsequent suit by the very same person, having

withdrawn an earlier suit would be maintainable. {Para 14}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH: NAGPUR

CIVIL REVISION APPLICATION NO. 45 OF 2021

Subhash Mukundrao Deshmukh Vs. Prakash Mukundrao Deshmukh and Ors.

CORAM : MANISH PITALE J.

DATE : 18.07.2022.

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Whether cause of action to file a suit accrues at a place where the consequence of wrongful act has occurred?

  In the backdrop of the aforesaid averments the learned Civil Judge was of the view that the suit was also for compensation for wrong to the person of the plaintiffs and, thus, the plaintiffs had the option to choose the Court in which the suit could be instituted under Section 19 of the Code. Sections 19 and 20 of the Code read as under:

"Section 19. Suits for compensation for wrongs to person or movables.

Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within  the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Section 20. Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises."{Para 13}

14. On a plain reading, it becomes evident that Section 19 specifcally deals with a suit for compensation for wrong done to the person or to movable property. The later part of Section 19 indicates that, in a given case, where the wrong was done within the local limits of jurisdiction of one Court and the defendants reside or carry on business or personally work for gain, within the local limits of the jurisdiction of the another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. For the applicability of the later part of Section 19, two conditions must co-exist. One, the wrong to the person or movable property must have been done within the local limits of the jurisdiction of one Court. Two, the defendant, who is alleged to have caused such wrong, must reside or carry on business etc. within the local limits of the jurisdiction of the another Court. If these twin conditions are satisfed the plaintiff has the option to sue the defendant in the Court at either of those places.

15. The second condition of the residence or presence of the defendant is, in a sense, objective and does not present much diffculty. The phase "if the wrong was done", however, has an element of subjectivity and the facts of the given case have a bearing on its import. The words "wrong done", if properly construed, do not appear to have been used in a restricted sense. The said words are required to be so construed as to subsume in its fold even the consequences of the wrongful action and thereby afford the aggrieved party the choice of forum to seek the relief. It viewed through this prism, the phrase 'wrong done' includes the act which is wrongful and the consequences it entails upon the person who is affected by the said wrong and the place where those consequences ensued.

Bombay High Court

Ajay Bandu Darekar And Ors vs Adhikrao Baburao Deshmane And Anr on 9 December, 2019

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Whether court should reject or return the plaint if the cause of action has occurred in the jurisdiction of another court?

  In the backdrop of the aforesaid legal position, reverting to the facts of the case, it appears that the territorial jurisdiction of the Civil Judge, Senior Division, Islampur, was sought to be questioned on the premise that the entire transaction between the plaintiff and defendant no.1 had occurred within the local limits of the jurisdiction of the Court at Pune, and no part of the cause of action arose within the limits of the Court at Islampur. Strictly speaking, it is not the case of the defendants that the plaint does not disclose a cause of action. At best, the case of the petitioners - defendants was that, though there was a cause of action for institution of the suit, yet, the same arose within the jurisdiction of the Court at Pune and, therefore, the  plaint was liable to be rejected. Ex facie, it appears that the grounds raised by the petitioners would, if accepted, warrant return of the plaint for presentation to the proper jurisdictional Court. A case for rejection of the plaint was thus not made out.{Para 10}

Bombay High Court

Ajay Bandu Darekar And Ors vs Adhikrao Baburao Deshmane And Anr on 9 December, 2019

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Whether concept of cause of action is applicable to criminal law?

 The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases.

Supreme Court of India

Y. Abraham Ajith & Ors vs Inspector Of Police, Chennai & Anr on 17 August, 2004

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How to ascertain limitation for filing partition suit under Muslim law?

 The estate of a deceased Mohamedan devolves on his heirs at the moment of his' death. The heirs succeed to the estate as tenants in common in specific shares. Where the heirs continue to hold the estate as tenants in common without dividing it and on of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule 1 to the Limitation Act, 1908 would be the relevant Article.

The cause of action for partition of properties is said to be a perpetually recurring one" See Monsharam Chak-ravarty & Ors. v. Gonesh Chandra Chakravarty & Ors. (2). In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The share,,, of heirs under Mohamedan Law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law.

Supreme Court of India

Syed Shah Ghulam Ghouse Mohiuddin ... vs Syed Shah Ahmed Moriuddin Kamisul ... on 17 February, 1971

Equivalent citations: 1971 AIR 2184, 1971 SCR (3) 734

Bench: Ray, A.N.

           
BENCH:
RAY, A.N.
MITTER, G.K.

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Supreme court: Retired employee can file a petition regarding stoppage of his pension at the place where he is residing and getting pension

 As noted above, the learned single Judge has also observed that Petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction, Shri B.N. Mishra had filed a Writ Petition No. 4930 of 2013 in Jharkhand High Court for the relief which was claimed in Writ Petition No. 13955 of 2006. As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the Petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned Counsel for the Respondent Nos. 1 to 3 on principle of forum non conveniens has no substance.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3630 of 2020 

Decided On: 05.11.2020

 Shanti Devi Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ.

Citation: MANU/SC/0842/2020

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