Supreme Court: Defendant can not file counter claim solely against the co-defendants

Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counterclaim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court. {Para 17}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4517-18 of 2006.

Decided On: 17.10.2006

Rohit Singh and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and P.K. Balasubramanyan, JJ.

Author: P.K. Balasubramanyan, J.

 Citation: 2006 INSC 706, MANU/SC/4619/2006,(2006) 12 SCC 734.

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Bombay HC: A dispute arising out of a singular transaction of assignment of debt cannot be considered a 'commercial dispute'

In the facts of this case, the dispute relating to the transaction of assignment of debt by the Plaintiff No. 1 in favour of the Defendant No.1 not being a dispute arising out of an ordinary transaction of a merchant, financier or a trader, and obviously not a banker nor a dispute arising out of any of the items mentioned in Section 2(1)(c) (ii) to (xiii), the dispute relating to the breach of the agreement dated 7th July, 2023 would not be a commercial dispute arising out of ordinary transactions of merchants, bankers, financiers and traders as defined under Section 2(1)(c)(i) of the said Act nor any other items at (ii) to (xiii) even if the purpose be otherwise commercial and therefore, would not fall within the jurisdiction of the Commercial Division of this Court. If the dispute as held is not commercial dispute, even if the dispute is above the specified value that would be of no consequence. Also the reliance upon the other sections of the said Act including Sections 4, 7 and 15 as well as the preamble of the said Act would in my view not assist the case of Mr. Narvekar’s clients.{Para 27}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 6341 OF 2024

IN

SUMMARY SUIT NO. 18 OF 2023

VARANIUM CLOUD LIMITED …APPLICANT

IN THE MATTER BETWEEN

ROLTA PRIVATE LIMITED AND ANR. …PLAINTIFFS

VS

VARANIUM CLOUD LIMITED AND ANR. …DEFENDANTS

CORAM :ABHAY AHUJA, J.

PRONOUNCED ON: 11 TH NOVEMBER, 2024

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Supreme Court: Courts Cannot Prepone Date Of Hearing Without Giving Notice To Other Party

  When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

Read full Judgment here: Click here.

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Supreme court: Defendant Can Cross-Examine Plaintiff Even If Suit Is Proceeding Ex-Parte Against Him & Written Statement Isn't Filed

On 1st July, 2002, the defendants applied for setting aside theorder dated 3rd May, 2002 by which their defence was struck out. The application proceeds on the allegation that on 3rd May, 2002, the Court proceeded to strike out the defendants' defence without giving them an opportunity of being heard and the hearing was conducted ex parte. Very interestingly, a reply was filed to the said application by the plaintiffs in which a stand has been taken that as the suit was directed to proceed ex parte, there was no occasion to give an intimation to the defendants or their counsel that the application will be taken up on 3rd May, 2002. Therefore, it is an accepted position that the application for striking out the defence of the defendants was taken up on the cause list on 3rd May 2002 without issuing notice to the defendants, though on 22nd April, 2002, the next date was already fixed as 30th May 2002.

The application for setting aside the order dated 3rd May, 2002 was rejected. At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit isordered to proceed ex parte against him, the limited defence

available to the defendant is not foreclosed. A defendant can

always cross-examine the witnesses examined by the plaintiff to

prove the falsity of the plaintiff's case. A defendant can always

urge, based on the plaint and the evidence of the plaintiff, that

the suit was barred by a statute such as the law of limitation.

Therefore, notwithstanding an order passed earlier to proceed ex

parte, while deciding an application for striking out the defence,

it was the duty of the Court to give an opportunity of being heard to the defendants. However, that was not done. As the suit was fixed on 30th May, 2002, the defendants were entitled to a notice that the suit would be taken up on an earlier date for hearing the application for striking out the defence. When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

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Under which circumstances the Appellate court can permit defendant to Add Facts Omitted Earlier In Written Statement?

The matter in hand would go to show that the petitioner/ defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected. {Para 30}

31. To my mind, the impugned order suffers from improper exercise of jurisdiction. No doubt, the proposed amendment/facts were to the knowledge of the defendant when she filed the written statement, that ground could have been considered qua the status of the defendant being illiterate and pardanashin lady. At the most,costs could have been imposed since the proposed amendment is not in a mala fide manner and certainly it is not causing any prejudice to the plaintiff.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 1608 OF 2021

 Hasinabi w/o Abdul Latif Vs  Mohammad Sharif S/o Abdul Rajjak, 

CORAM : B.P. DESHPANDE, J.

PRONOUNCED ON : 7TH MARCH, 2024

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Whether plaintiff or a defendant, while deposing as a witness, can be confronted with documents in cross- examination completely divorced from or foreign to the pleadings made?

 The differentiation between the party to a suit and a witness, as is made clear by our earlier discussion, is not something that gels with the law. As has been hitherto observed, the term witness does not exclude the party to the suit i.e., the Plaintiff or the Defendant, themselves appearing before the court to enter evidence. As far as the non-production of documents amounting to fraud, it may be true that the non-production of documents on which the parties place reliance, may hinder the progression of the suit- and in a given case, perhaps may amount to fraud- but we do not comment on those possibilities, if any. However, the intentional withholding of a document, in these two situations- is completely different. One is the withholding of a document upon which the case depends, or is essential for the lis to be appropriately decided - and the other is solely for the purpose of effective cross-examination. The two cannot be held to be at the same pedestal, the latter most certainly not amounting to fraud.

{Para 20}

30. A reading of the judgments above would imply that substance is what the courts need to look into, and therefore, in reference to the production of documents, in the considered view of this Court, so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8146 of 2023 

Decided On: 14.12.2023

Mohammed Abdul Wahid Vs. Nilofer and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation: MANU/SC/1342/2023.

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Under which circumstances the court can grant relief to defendant?

 It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not Such cases as Luke v. South Kensington Hotel Co. (1879) 11 Ch D 121 and Cullen v. Knowles (1898) 2 Q.B. 380 are examples of this principle. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action: see Hughes v. Pump House Hotel Co. Ltd. (No. 2) (1902) 2 K.B. 485 Once all the parties are before the Court, the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants. Prima facie therefore the trial Court in the present case should have given judgment in favour of the eight of the original partners who survived, though some of them had been made defendants: see Cullen v. Knowles (1898) 2 Q.B. 380 at page 382. {Para 11}

 BEFORE THE PRIVY COUNCIL

Decided On: 02.05.1939

Manghibai  Vs. Cooverji Umersey

Hon'ble Judges/Coram:

Porter, Thankerton and George Rankin, JJ.

Author: Porter, J.

Citation: AIR 1939 PC 170, MANU/PR/0023/1939.

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Under which circumstance the court can reject application of defendant for production of document at the stage of their evidence?

 The revision-petitioners though stated that they referred

the documents during the cross-examination of P.W.1, did not

produce the said documents at that time, but filed the

documents when the suit is at the stage of defendants evidence

and sought the leave of the Court. As already stated above,

except the document No.6, no other document is referred in the

written statement by the revision-petitioners. No reason was also

assigned in the written statement for retaining the said

documents with the defendants at that time.{Para 11}

12. The affidavit filed by the revision-petitioners before the

Trial Court would show that documents were very much available with the defendants at the time of filing the written statement, but they did not file and now, they want to show that they retained them as they were required for taking loan from banks or getting benefits from the Government. But, no material is coming forthwith to support the same.

13. This Court in Ravi Satish and Voruganti Narayana Rao

cases (supra) held that grant of leave is not for mere asking, nor

is the Court a mere Post-Office to receive documents even in the

absence of any reasons being furnished for failure to file the said

documents along with the written statement.

14. In those circumstances, there are no grounds to interfere

with the Order of the Trial Court, as this Court did not find any

material irregularity in the impugned Order of the learned Trial

Court and the revision-petition is deserved to be dismissed.

 HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CIVIL REVISION PETITION NO.4776 of 2016

Kottakota Lakkappa  Vs B.Lakkappagari Chikkaiah 

DATE OF ORDER PRONOUNCED : 18.08.2023

Coram:  SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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Whether a person can seek that he be added as party to a suit if there is any dispute between him and defendant?

 Point No. (i):- The interveners mainly contended that the property has wrongly been sold by Mahabir Singh his uncle even including the share of the intervener in favour of the defendant 1st party. In fact the intervener are the real owner and in possession of the property of their share. The sale deed is illegal sale deed. So far these allegations are concerned, there is nothing on record in support of these facts. According to the defendants, the properties were sold by Mahabir Singh who was one of the settlee. Now, therefore, this dispute raised by the intervener is dispute between defendants because if the intervener will be added, they will be defendant in the suit. In my opinion, therefore, the inter se dispute between the defendants cannot be decided in a suit filed by the plaintiff appellant. Order 1 Rule 10 CPC speaks about the jurisdiction of the Court and not the right of a party for being added as defendant. If the intervener are not necessary party and in absence of the interveners, if the dispute raised between the parties can be effectively decided by the Court, the Court should not add a person whose presence is not required for just decision of the case. Here, as stated above, the plaintiff approached the Court with a particular case which was denied by the defendants. This dispute is to be decided and the trial Court has dealt with the controversy between the plaintiff and the contesting defendants. Now, these interveners are raising another controversy against the contesting defendants for which neither there is any pleading nor there is any evidence. In such circumstances, for the purpose of setting aside the Judgment and Decree, the intervener cannot be added as a party after such a long period. The suit is of the year 1976 and the application has been filed in this First Appeal in the year 2015, i.e., after 39 years. Further the dispute as to whether the plaintiff has got title or not can very well be decided in absence of these interveners because they are not saying anything against the plaintiff but are making allegation against the contesting defendant. In my opinion, therefore the interveners are not at all necessary party and accordingly, this intervention application, i.e., I.A. No. 3490 of 2015 is hereby rejected. {Para 15}

IN THE HIGH COURT OF PATNA

First Appeal No. 530 of 1982

Decided On: 07.07.2015

Sahood Alam and Ors.  Vs. Nayyer and Ors.

Hon'ble Judges/Coram:

Mungeshwar Sahoo, J.

Citation: MANU/BH/0423/2015.

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Can a defendant who is a stranger to the sale deed challenge it?

  In Lal Achal Ram v. Raja Kazim Hussain Khan (1905) 32 IA 113, the Privy Council laid down the principle that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. This decision has since been considered by various High Courts and a distinction has been drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as a genuine document to effect transfer of title. In such a situation, it would be open even to a stranger to impeach the deed as void and invalid on all possible grounds. This was also laid down in Kamini Kumar Deb v. Durga Charan Nag and Ors. AIR (1923) Cal. 521 and again in Saradindu Mukherjee v. S.M. Kunja Katnini Roy and Ors. MANU/WB/0159/1942 : AIR1942Cal514 . The Patna High Court in Jugal Kishore Tiwari and Anr. v. Umesh Chandra Tiwari and Ors. MANU/BH/0116/1973 : AIR1973Pat352 and the Orissa High Court in Sanatan Mohapatra and Ors. v. Hakim Mohammad Kazim Mohammad and Ors. MANU/OR/0061/1977 : AIR1977Ori194 have also taken the same view. {Para 19}

20. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be conveyed to plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram (supra) in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.

IN THE SUPREME COURT OF INDIA

C.A. No. 1534 of 1999

Decided On: 17.03.1999

Vidhyadhar Vs. Manikrao and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and D.P. Wadhwa, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: MANU/SC/0172/1999

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Should the court rely on the defence taken by the defendant if he fails to give his evidence before the court and gets cross-examined?

Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.

16. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. MANU/PR/0049/1927, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under:

Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.

This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy."

17. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination.

19. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh MANU/MH/0063/1930 : (1930)32BOMLR924 , which observed as under:

It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case.

21. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha and Anr. v. Smt. Tulsibala Dassi and Anr. MANU/WB/0183/1958 : AIR1958Cal713 :

The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.

The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. MANU/UP/0007/1971 : AIR1971All29 , held that :

the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give.

 IN THE SUPREME COURT OF INDIA

C.A. No. 1417 of 1982

Decided On: 16.03.1999

Iswar Bhai C. Patel  Vs.  Harihar Behera and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M.B. Shah, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: MANU/SC/0173/1999

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Whether defendant can take all pleas available to him to defeat suit of plaintiff?

 The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff.

IN THE SUPREME COURT OF INDIA

C.A. No. 1534 of 1999

Decided On: 17.03.1999

Vidhyadhar  Vs.  Manikrao and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and D.P. Wadhwa, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: AIR 1999 SC 1441,MANU/SC/0172/1999.

Read full Judgment here: Click here

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Whether conduct of defendant who is seeking vacation of interim order should also be fair and honest?

  The Wander Ltd. v. Antox India P. Ltd. (supra) fell for consideration in Gujarat Bottling Co. Ltd. v. Coca Cola Co. MANU/SC/0472/1995 : (1995) 5 SCC 545 wherein the Hon'ble Supreme Court observed that under Order 39 CPC the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. It is relevant to reproduce paragraph No. 47 as under:

"47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings". {Para 33}

34. In the present case, the trial court, while granting temporary injunction, has discussed that during the pendency of the suit the defendant No. 1, the appellant herein, transferred the suit schedule property in favour of defendants Nos. 2 and 3, and those defendants, in turn, transferred the part of the suit property in favour of third persons. The defendants/appellants invoking the jurisdiction of this court are therefore responsible for bringing about the state of things complained of by the plaintiff/respondent before the court below and cannot be prima facie said to be equitable in his dealings. In Gujarat Bottling Co. Ltd. v. Coca Cola Co. (supra) the Hon'ble Apex Court clearly laid down that the considerations of the conduct being fair and honest will arise not only in respect of an applicant seeking an order of injunction but also in respect of the party approaching the court for vacating the ad interim or temporary injunction already granted in the pending suit or proceeding.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Miscellaneous Appeal Nos. 43 and 45 of 2021

Decided On: 25.01.2022

K. Ravi Prasad Reddy and Ors.  Vs.  G. Giridhar and Ors.

Hon'ble Judges/Coram:

C. Praveen Kumar and Ravi Nath Tilhari, JJ.

Author: Ravi Nath Tilhari, J.

Citation: MANU/AP/0075/2022.

Read full Judgment here: Click here

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Under which circumstances the court can direct defendant to adduce his evidence first?

Thus, in view of the aforesaid, it is clear that if the defendants are able to prove the issues no. 1 and 2 with respect to which the onus is on defendant no. 1 and defendant no. 3 respectively, then it will facilitate and streamline the whole trial and also shorten the litigation. If the defendant no. 1 is successful in discharging the onus that Will dated 12.07.2016 was the last Will executed by the father of the parties, then the suit of the plaintiff is bound to fail and she will not be entitled to any relief. Likewise, if defendant no. 3 is able to prove that the father of the parties validly and legally executed his last Will dated 05.09.2014, by which all the parties were endowed with certain shares in the suit properties, then also the whole case will be decided accordingly. There would be no necessity to delve in the further aspects of the matter. Accordingly, it will be in the fitness of things if the defendants are directed to lead evidence first on the issues qua which onus is cast upon them. {Para 25}

26. A Coordinate Bench of this Court in the case of Achala Mohan Vs Jayashree Singh, reported as MANU/DE/0798/2020 has held as follows:-

“19. Thus, the consistent view has been that if the Defendant sets up a case, the proving of which, would completely decide the issues which have been raised in the suit itself, then the Defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first.

25. The ld. counsel for the Defendant submits that unless and until the Defendant voluntarily opts for leading evidence first, the Court would not have the power to direct so. This would not be in accordance with law inasmuch as the Court has the power to curtail the trial of any suit at the time of framing of issues. The manner in which the issues have been framed in the present case shows that insofar as the issue no.1 and issue no.2, the onus has been cast clearly on the Defendant. If the Defendant is able to prove or not prove these issues, the decision in the suit would get quite expedited.

26. Under these circumstances, it is not necessary that in every suit, unless and until, the Defendant opts, the Court cannot direct the Defendant to lead evidence first. The question as to whether who should lead evidence first, would have to be decided by the Court after ascertaining the respective stands of the parties and after seeing as to what are the actual issues which arise for adjudication in the suit itself.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on:18th July, 2022

CS(OS) 587/2017 & I.A.No.10136/2018

SMT. POONAM BHANOT Vs VIRENDER SHARMA & ORS

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

Decided on:18th July, 2022

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Can the court ask the defendant to make his final argument before the plaintiff?

 In the present case, I am concerned with Rule 2, which lays down the general rule that the one, which has right to begin, must "address the Court generally on the whole case". It further provides that the party beginning may then "reply generally on the whole case". A careful reading of Rule 2 clearly shows that the said Rule proceeds on the principle that the party, which has involved in the evidence first must address the Court last. Thus, on a plain reading of the provisions of the said Rule, it is the defendant, who has to open the argument first.

9. As already indicated, Rule 2 of Order 18 clearly stipulates that the party giving the evidence first has the right to address the Court last and the defendant having led his evidence last, he is required to address the Court first.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.P. SHAH, J.

Gajanan Dhondu Dalvi Vs. Trishul Construction Company & Ors.

Civil Revision Application No. 45 of 1995

9th February, 1995

Citation:  1996(3) ALL MR 167

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Whether the court would pass judgment on admission if the defendant fails to plead the date on which his adverse possession commenced?

  With regard to what are the necessary pleadings in a case where title through adverse possession is claimed, either as a shield or as a sword, the Supreme Court in Karnataka Board of Wakf (supra) has held that a person who claims adverse possession should show : (a) on what date he had come into possession; (b) what was the nature of his possession; (c) whether the factum of the possession was known to the other party; (d) how long his possession has continued and (e) his possession was open and undisturbed. It is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. This possession which is adequate in continuity, in publicity, and in extent must be to show that the possession is adverse to the true owner. It must start with wrongful dispossession of the rightful owner and the actual physical and hostile continued possession over a statutory period.{Para 27}

28. No doubt the defendants have accepted the fact that this suit property had fallen in the share of late Sudhir Kumar Tyagi, the plaintiffs' predecessor-in-interest, on partition of the suit property and he had been its owner since then. However, one fact that stands out is that in 2004, the defendants admit that defendant No. 1 requested late Sudhir Kumar Tyagi to allow them to use the plot which was adjacent to their Sports Complex. In view of the fact that the parties were on good terms, as per the averments in the written statement, late Sudhir Kumar Tyagi had permitted the defendant No. 1 to use the plot. Thus, the possession has not been a result of wrongful dispossession of the rightful owner, when the defendant No. 1 came into the premises.

29. It is trite that long possession will not affect the title of the true owner. Nor would the lack of use of the property by the owner, for a long time, affect his title. It is only when the defendants start asserting hostile title that the clock will start ticking. Strangely, in the entire written statement, the defendants have not stated with any definiteness as to the dates since when they had started asserting their hostile title. That alone would disclose a valid defence to the suit by asserting title by adverse possession. The mere fact that the boundary walls had been built by the defendants cannot be termed as a hostile act against the true owner as the walls had been constructed to define the properties of the defendants after the family partition took place. Nor for that matter, would the construction activities at the site be inferred as an assertion of hostility by the defendant No. 1, as nowhere it is stated that he had done so without the permission of the true owner late Sudhir Kumar Tyagi and in fact claimed title during his life time.

30. In fact, there is no disclosure in this regard, except a bald assertion. But when the written statement is seen in totality, the fact that the parties were in a cordial relationship and the defendant No. 1 himself claims that the water and electricity meters continue to stand in the name of late Sudhir Kumar Tyagi and that he used to reimburse him when payments were made, would show that the defendant No. 1 did not assert independent and hostile title to late Sudhir Kumar Tyagi. It is in this background that a date had to be disclosed when assertion of hostile possession was first made, since limitation would then be counted from that date. An essential ingredient has thus not been pleaded.

31. The defendants had to specifically plead with sufficient clarity when the possession became adverse and the exact date when adverse possession commenced and whether this fact was let known to the real owner. Their only reliance is on construction activities but that fact alone does not establish hostile title, as the initial possession was permissive. It was deemed to have continued till the plaintiffs revoked that permission to the defendants to remain in the suit property. It is only when the required animus to hold the property in a manner hostile to the true owner that it would be possible to determine how many years have passed since such open and hostile possession continued. Without commencement, there cannot be continuation. In the present case, a fundamental plea to submit the claim of adverse possession is missing and the burden on the defendants has not been discharged.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

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Whether court should pass judgment on admission if defence of defendant is moonshine?

 The Division Bench of this court in P.P.A. Impex Pvt. Ltd. (supra) after reference to T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 observed as below:

“9. It appears to us that the approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, in the context of Order 37 of the CPC with regard to granting leave to defend a summary suit. This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial.

(emphasis added) {Para 24}

25. It further went on to hold that if pleadings that were vague and were in the nature of total moonshine were taken note of, the provision of Order XII Rule 6 would be virtually annihilated.

26. Thus, while disposing of an application under Order XII Rule 6 CPC, the court is fully justified in considering the averments in the written statement to see whether essential facts have been pleaded or whether the defence is a complete moonshine, requiring the Court to not send the case for trial.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

CS(OS) 230/2020 and I.As. 7755/2020 

Decided on December 17, 2021

Citation: 2021 SCC OnLine Del 5400

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Whether the court should order the abatement of a suit if the plaintiff fails to implead some of the legal heirs of deceased defendants?

In Daya Ram v. Shyam Sundari MANU/SC/0298/1964 : AIR 1965 SC 1049, the appellant had impleaded the heirs of the deceased respondent so far as known to him but had omitted to bring on record some of the heirs. Their details were unavailable with him. The question was about the effect of the appellant's having omitted to include two of the legal heirs, a son and a daughter, who admittedly had an interest in the property. The omission was brought to the court's notice before the could be heard.

74. Noting the impact of Order 22, Rule 4 of CPC, Daya Ram has observed that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal. It has ruled that if the impleaded legal representatives sufficiently represent the estate of the deceased, a decision obtained with them on record will bind not merely those persons impleaded but the entire estate including those not brought on record. So if one of the legal heirs is on record, the appeal or suit would not abate.

75. Then, Daya Ram answered another question. It concerns the effect of omission to include all the known legal heirs, who, admittedly, had an interest in the property, despite the plaintiff's knowing about it. It has answered this query by holding that "there would be no abatement of the suit or appeal if the estate of the deceased is sufficiently represented. It has, however, gone ahead and held that "once it is brought to the notice of the Court hearing the appeal that some of the legal heirs of the deceased have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring others on record, so that the appeal could be properly constituted." In other words, if the appellant should succeed in the appeal, it would be necessary for him to bring on record those representatives whom he had omitted to implead originally.

76. In Parvez Rustom Nekoo, this Court has relied on Daya Ram and then held that once some of the legal heirs of the deceased are brought on record, the proceeding does not abate. "[B]ut once the petitioner is put on notice with respect to the omission on his part to implead other legal heirs, in that event, it is obligatory on his part to bring the left-out legal heirs on record." It has also observed that "[i]t is not open for any litigant who has the knowledge of other legal heirs to contend that one of the legal heirs is on record and therefore, proceeding does not abate. All known legal heirs must be brought on record."

77. If we trace back the roots of the case, the present tenants' common ancestor was the tenant, as was the present owners' common ancestor was the landlord. After their death, the families spread. What was leased out is a business structure: two rooms. In about six or seven decades, neither family remained constant. And the available tenants have been brought on record. They are tenants by operation of law; they have no independent right. So one represents another unless that another establishes there is a conflict of interest among them. Here a couple of children of one of the deceased co-tenants not being impleaded, I am afraid, cannot be fatal.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 497 of 2016

Decided On: 06.09.2019

Rukminibai Motiram Kshirsagar  Vs.  Manoramabai Mallikarjun Bagale

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(2) MHLJ 756,MANU/MH/2504/2019

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Whether a defendant can challenge finding given by the court on the issue raised by him in his written statement?

Mainly, it is contended by Sri Vikas Singh, learned senior Counsel for the Appellant-Defendant, that the Trial Court and the First Appellate Court committed an error in deciding the rights of parties in respect of the common areas in the ground floor, when the suit itself was filed, confined to the partition of second floor and terrace rights. 

8. On the other hand, Sri P.S. Patwalia, learned senior Counsel appearing for the Respondent, has submitted that it was the Appellant-Defendant, who in the written statement had raised a dispute in respect of common areas, as such the Trial Court has framed the issue on the common areas and decided the same. It is further submitted that having regard to pleadings and evidence on record, the Trial Court as well as the Appellate Court, have rightly decided the claim of the Appellant-Defendant in respect of the common areas also and there are no grounds to interfere with the same.

9. It is true that the suit filed by the Respondent-Plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the Appellant-Defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. 

10. The Trial Court, had to frame an issue in view of the claim made by the Appellant-Defendant in respect of the common areas also. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for the Appellant-Defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit.

11. Having invited findings by raising a dispute of the common areas, the Appellant-Defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1899-1900 of 2020 

Decided On: 02.03.2020

Sajan Sethi  Vs.  Rajan Sethi

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and R. Subhash Reddy, JJ.

Author:R. Subhash Reddy, J.
Citation:(2020) 4 SCC 589

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Whether licence granted to the licensee is revoked on the filing of eviction suit?

Also, it is clarified that the plea of the defendant she had never received the legal notice dated 18.04.2015, has not been factored in this adjudication because in view of Section 61 of the Easements Act, 1882, the licence of the defendant to stay at the second and third floor of the suit property, stood definitely revoked, with effect from the day, when the defendant had received the summons for settlement of issues of this suit.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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