Whether a litigant can file civil appeal in anticipation?

The doctrine of eclipse has no application in a case of this nature. An appeal preferred in terms of Section 96 CPC must conform to the requirements contained in Order 41 thereof. An appeal at the time of its filing would either be maintainable or would not be. The High Court, with respect, was not correct in holding that such an appeal could be filed in anticipation. If such a procedure is contemplated in the law; the Respondents herein might not have filed the substantive appeal or would have prayed for withdrawal of the review application before the trial court itself. Having filed a review application on legal advice and having succeeded therein in part, it was not open to it to prefer an appeal against the entire decree dated 20.12.2001 whereby the suit in its entirety was dismissed. The Respondents could have only preferred appeal only from that part of the decree in respect whereof review was not granted.{Para 32}

33. The right of review is a statutory right. Such right can be invoked if the conditions therefore are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review.

34. In Garikapatti Veeraya (supra), this Court held :

"Considering the question on principle, an appeal is a proceeding by which the correctness of the decision of an inferior court is challenged before a superior court. A right of appeal therefore can arise by its very nature only when a decision by which a litigant is aggrieved is given, and it sounds paradoxical to say that it arises even before judgment in the case is pronounced..."

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1509 of 2005 

Decided On: 03.03.2005

Rekha Mukherjee  Vs. Ashis Kumar Das and Ors.

Hon'ble Judges/Coram:

N. Santosh Hegde and S.B. Sinha, JJ.

Author: S.B. Sinha, J.

Citation : (2005 )3SCC 427,  MANU/SC/0172/2005

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What is the litigant's duty if the opposite side has given a pay order to him during the pendency of the proceeding?

  In the opinion of this court, the impugned order has not rested its findings on any principle of law, much less any statutory provision. The Tribunal appears to have been completely swayed by the complainant's plight. In doing so, it did not give due consideration to the fact that ₹ 4,53,750/- was debited from the account of the developer. The complainant, for reasons best known to her, filed the original Pay Order due to perhaps lack of proper advice or instruction. Apparently, no order contemporaneously was sought from the MRTP Commission, which would have protected the interests of the complainant with respect to the money received even while ensuring that her contentions on the merits with respect to entitlement towards the flat were preserved. Many avenues / alternatives were available. 

Firstly, the complainant could have sought for a deposit of the proceeds of the Pay Order in an account, to be maintained by the Registrar of the Commission. 

Secondly, she could have sought for a ‘without prejudice’ order enabling her to encash the amount, and at the same time ensure that her claim was not defeated on that score. 

Thirdly, equally, she could have sought for appropriate orders that the amount be maintained by the developer, who could, in the event it became necessary, be directed to pay the principal along with such interest as the Commission or the Tribunal deemed appropriate and in the interests of justice.

 Since none of these choices were opted for, and also having regard to the fact that the amount in question was undoubtedly debited from the developer's current account, there ought to have been a discussion of what was the applicable legal provision which fastened any liability upon the developer. This was more important because the Tribunal in the present case has accepted Citibank’s explanation regarding interest (or rather, its absence of liability, even though the amount was undoubtedly with the bank for about 11 years). {Para 28}

32. In the present case, the complainant was aware that the Pay Order had been tendered by the developer to her; nevertheless she filed the original Pay Order with her complaint, and did not seek any order from the MRTP Commission at the relevant time. The pleadings in the complaint did not disclose that the Pay Order was filed in the Commission, to enable the developer to respond appropriately. In these circumstances, the developer’s argument that the rule embodied in Order XXI, Rule 4 CPC, is applicable, is merited. The developer cannot be fastened with any legal liability to pay interest on the sum of ₹ 4,53,750/- after 30th April 2005.

33. This court is also of the opinion that the complainant’s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail. The records nowhere disclose any fault on the part of the developer; on the other hand, the complainant did not take steps to protect her interests. It has been held by this court, in Sailen Krishna Majumdar v Malik Labhu Masih10 that in such cases, even if equities are equal, the court should not intervene:

“Equity is being claimed by both the parties. Under the circumstances we have no other alternative but to let the loss lie where it falls. As the maxim is, 'in aequali jure melior est conditio possidentis'. Where the equities are equal, the law should prevail. The respondent's right to purchase must, therefore, prevail.”

In the present case too, the complainant cannot claim interest from the developer, who had returned the Pay Order. As discussed, at the time of filing of the complaint, she could have chosen one among the various options to ensure that the amount presented to her was kept in an interest-bearing account, without prejudice to her rights to claim interest later. In these circumstances, no equities can be extended to her aid.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO(S). 1401 & 4530 OF 2019; 

K.L. SUNEJA & ANR.Vs DR. (MRS.) MANJEET KAUR MONGA (D) THROUGH HER LR & ANR.

Coram: M.R. SHAH; J., S. RAVINDRA BHAT; J.

Author: S. RAVINDRA BHAT, J.

Dated: JANUARY 31, 2023.

Read full Judgment here: Click here

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Whether the court can presume that litigant was aware of court procedure if she has filed three criminal cases?

  It is an established position from record that the summons was served, yet the Appellant refused. The Appellant had knowledge of the legal procedure, having filed three criminal cases. On several dates, after the summons was served since the Appellant did not remain present, and the decree of divorce came to be passed. After waiting for almost six months, the family Court had no option but to proceed further and grant the decree of divorce. We do not find any error in the view taken by the learned Family Court Judge. {Para 7}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 CIVIL APPELLATE JURISDICTION 

FAMILY COURT APPEAL NO. 69 OF 2009 & CIVIL APPLICATION NO. 120 OF 2012

 Rohini Raju Khamkar Vs Raju Ranba Khamkar

Coram:  NITIN JAMDAR; J., SHARMILA U. DESHMUKH; J.

Author: Nitin Jamdar, J.

Dated: 12 October 2022

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What is duty of a litigant while seeking ex-parte injunction?

To avoid ambiguity, I take the liberty of briefly summarizing the key principles I believe apply to every ex parte application. I do so because I believe an application for leave to move ex parte can never be granted for the asking or automatically.

(a) The general principle is that the Court will hear both sides before rendering a decision. This is the essence of any adversarial justice-delivery process and based on the fundamental rule of natural justice and fairness, audi alteram partem. An ex parte application, without notice to or hearing, the other side is, therefore, the exception, a derogation from this general principle.

(b) It is every advocate's and every court's paramount duty, of the very first importance, to ensure the integrity of the judicial process. When, therefore, a court is asked to depart from the general and general rule, it must be able to rely on the applicant (who or which is appearing without an opponent on notice) to present its case fairly and evenly. This means that the applicant's case must contain a disclosure or statement of an anticipated defence or arguments likely in opposition. In turn, this means that an applicant seeking an ad-interim relief without notice must make a full and reasonably accurate disclosure of material facts and must invite the court's attention to factual, legal and procedural issues. On the factual issues to be disclosed, the applicant need only disclose as much--but every bit as much--as is within his knowledge, or that which, with reasonable efforts, he could discover. Material in the public domain, including in open registries, falls within this class of factual material.

(c) The disclosure and statement in the application or plaint must be neutrally and objectively presented so that the court has confidence in the case brought. Merely annexing a slew of documents does not, of itself, serve this purpose.

(d) Necessarily, this means that the applicant must be shown to have made the necessary and proper enquiries, within the bounds of reason, before making the application. This material can be in a supporting affidavit, but it must be before the court. Some level of investigation and enquiry must be demonstrated. This duty of disclosure includes matters of which the applicant would have been aware had he made reasonable enquiries. Specific to IPR matters, for instance, is the requirement for a search in the registry as to what, if anything, the defendant has done in regard to the competing mark, service, product or thing. For trademarks: has the defendant sought registration? When and with what effective date? With or without a disclaimer? There must be market information too: how long has the defendant been in the market with the rival product and mark? In what area? In what manner?

(e) Ex parte applications are, by definition, moved in urgency. This must be demonstrated too. The compilation of relevant material may be less than optimally organized in view of the urgency, but the urgency does not excuse the need for a sufficient disclosure. The requirement is not of the fullest and most complete disclosure but enough to make the court cognizant of the likely issues and possible defences. A detailed analysis of every single possible point is not required. Undoubtedly, the requirement of disclosure relates to relevant material, and kept within sensible limits. The disclosure must be proportionate, and the task is not the pursuit of perfection (for it will always be argued that the disclosure might have been bettered). The disclosure requirement is, above all, a safeguard to ensure that the court is not misled on a material and relevant aspect.

(Emphasis added)  {Para 5}

IN THE HIGH COURT OF BOMBAY

Commercial Appeal (L) No. 31992 of 2022 i

Decided On: 07.10.2022

Kewal Ashokbhai Vasoya and Ors. Vs.  Suarabhakti Goods Pvt. Ltd.

Hon'ble Judges/Coram:

G.S. Patel and Gauri Godse, JJ.

Citation: MANU/MH/3566/2022

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Whether Litigant is Entitled To Refund Of Court Fees If Matter is Settled Outside Court Without Invocation Of S.89 CPC?

 In view of the aforesaid, I am of the considered opinion that even if the matter is settled by the parties outside the Court without invoking the provisions of section 89 CPC, the appellant while withdrawing his first appeal, is entitled to the refund of full Court fees as provided under section 16 of the Court Fees. {Para 7} Act, 1870. 

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

FIRST APPEAL No. 222 of 2015

DAYARAM  BALARAM PATEL,  Vs SMT. LAXMI AGRAWAL 

BEFORE

HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

ON THE 20th OF SEPTEMBER, 2022.

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What is duty of a litigant who is seeking exparte relief?

  The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 in the following words:

"[I]t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement".

(emphasis supplied)

REPORTABLE  

Supreme Court of India

K.D.Sharma vs Steel Authorities Of India Ltd.& ... on 9 July, 2008

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Whether court can prosecute parties for making false pleading as per S 209 of IPC U/S 340 of CRPC?

15. Conclusions

15.1 Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken.

15.2 Making a false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it has been be treated as an offence.

15.3 False evidence in the vast majority of cases springs out of false pleading, and would entirely banish from the Courts if false pleading could be prevented.

15.4 Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens.

15.5 The justice delivery system has to be pure and should be such that the persons who are approaching the Courts must be afraid of making false claims.

15.6 To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail.

15.7 Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the litigant to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of the Indian Penal Code and a reasonable opportunity be afforded to the litigant to reply to the same. The Court may record the evidence, if considered it necessary.

15.8 If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can direct the State agency to investigate and file a report along with such other evidence that they are able to gather.

15.9 Before making a complaint under Section 340 Cr.P.C., the Court shall consider whether it is expedient in the interest of justice to make a complaint.

15.10 Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 Cr.P.C.

16. This Court hopes that the Courts below shall invoke Section 209 of the Indian Penal Code in appropriate cases to prevent the abuse of process of law, secure the ends of justice, keep the path of justice clear of obstructions and give effect to the principles laid down by the Supreme Court in T. Arivandandam v. T.V. Satyapal (supra), S.P. Chengalvaraya Naida v. Jagannath (supra), Dalip Singh v. State of U.P.(supra), Ramrameshwari Devi v. Nirmala Devi (supra), Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy Sahara v. Union of India (supra).

 IN THE HIGH COURT OF DELHI

RFA 784/2010

Decided On: 22.01.2016

H.S. Bedi Vs.  National Highway Authority of India

Hon'ble Judges/Coram: J.R. Midha, J.

Citation: MANU/DE/0154/2016

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Supreme Court: Govt & Statutory authorities should act Model litigant and should not put forth false, frivolous, vexatious, technical plea

This Court, has time and again held, that the State should act as a model litigant. In this respect, we can gainfully refer to the following observations made by this Court in Urban Improvement Trust, Bikaner v. Mohan Lal MANU/SC/1817/2009 : (2010) 1 SCC 512:

6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.

7. In Dilbagh Rai Jarry v. Union of India [MANU/SC/0270/1973 : (1974) 3 SCC 554 : 1974 SCC (L & S) 89] this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of India MANU/KE/0029/1972 : AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723] AIR pp. 107-08, para 5)] : (SCC p. 562, para 25)

25.... '5.... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1600 of 2020 

Decided On: 14.02.2020

 Popatrao Vyankatrao Patil  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde, C.J.I., B.R. Gavai and Surya Kant, JJ.

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Whether litigant seeking condonation of delay due to negligence of his Advocate should make him a party to proceeding?

 This submission, at the first blush, appears very attractive and tends the Court to interfere with the matter. However, after hearing the learned counsel for the applicant, especially when a query was put to the learned counsel in respect of the conduct on the part of the applicant as to whether at any point of time, she on her own, contacted her advocate, the reply was in negative. A litigant who approaches to the Court must be diligent. He or she must take all steps to pursue his or her litigation. It is expected from the litigant that he or she is in contact with the lawyer who is representing his or her cause in the Court of law. A litigant cannot take a spacious plea that once the case is entrusted with an the advocate his or her work is over and the advocate will take care of the matter. An Advocate always discharges his duties on the instructions given to him by his client.

7. It is very easy for a litigant to make allegations against an advocate behind his back. If the applicant wishes to make allegations against the advocate, the applicant should have a courage to join the advocate as a party and in his presence should make allegation against him. Here, the applicant wants to condemn the advocate behind his back. In my view, it is impermissible and unacceptable. Further, no steps are also being taken by the applicant against any advocate under the provision of the Advocates Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Application No. 19/2018 in Second Appeal St. No. 22803/2017

Decided On: 18.06.2019

 Kanta  Vs.  Manjulabai and Ors.

Hon'ble Judges/Coram:

V.M. Deshpande, J.

Citation: 2020(1) MHLJ 918

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Whether litigant can condemn his Advocate behind his back for seeking condonation of delay?

However, after hearing the learned counsel for the applicant,
especially when a query was put to the learned counsel in
respect of the conduct on the part of the applicant as to
whether at any point of time, she on her own, contacted her
advocate, the reply was in negative. A litigant who
approaches to the Court must be diligent. He or she must
take all steps to pursue his or her litigation. It is expected
from the litigant that he or she is in contact with the lawyer
who is representing his or her cause in the Court of law. A
litigant cannot take a spacious plea that once the case is
entrusted with an the advocate his or her work is over and
the advocate will take care of the matter. An Advocate
always discharges his duties on the instructions given to him
by his client.

It is very easy for a litigant to make allegations
against an advocate behind his back. If the applicant wishes
to make allegations against the advocate, the applicant
should have a courage to join the advocate as a party and in
his presence should make allegation against him. Here, the
applicant wants to condemn the advocate behind his back.
In my view, it is impermissible and unacceptable. Further,
no steps are also being taken by the applicant against any
advocate under the provision of the Advocates Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION NO.19/2018 IN
SECOND APPEAL ST. NO.22803/2017

Kanta alias Shanti Subhash Karkale .vs. Manjulabai alias Kholki 
Haribhau Tarare and anr.

CORAM : V. M. DESHPANDE, J.
DATED : JUNE 18, 2019

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Whether litigant who settles case in Lok Adalat is entitled to get refund of 100% Court Fees?

 For the reasons which we have recorded, we are of the view that
subSection
(1) of Section 21 is a case of legislation by incorporation.
Therefore, provisions of Section 16 of the Central Court Fees Act will
have to be read in into subSection
(1) of Section 21 of the 1987 Act.
To conclude, Section 16 of the Central Court Fees Act stands
incorporated in subSection
(1) of Section 21 of the said Act of 1987
and, therefore, when a civil suit is referred to a Lok Adalat which ends
with an Award of the Lok Adalat, the plaintiff is entitled to 100% refund
of Court fees paid in the said suit. Thus, a defendant who files a
counter claim in the suit is entitled to 100% refund of the Court fees
paid on a counter claim which is settled before a Lok Adalat.

Therefore, in the three cases in hand, the learned Trial Judge was not
justified in calling upon the petitioner to deposit 75% of the amount of
Court fees out of the refund amount paid to the petitioner. Hence, we
dispose of the petitions by passing the following order :ORDER
(i) We hold and declare that petitioners being plaintiffs in the
suits settled before the Lok Adalat held under the Legal Service
Authority Act, 1987 are entitled to 100% refund of Court fees.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9864 OF 2017

Maharishi Shankarrao MohitePatil Sahakar Sakhar Karkhana Ltd,  v/s. The State of Maharashtra

CORAM : A.S. OKA &
M.S. SANKLECHA, J.J.
DATED : 2nd APRIL, 2019
 (Per A.S. Oka, J.)
Citation: 2019(5) MHLJ 175,AIR 2019(NOC) 821 Bom

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Whether Advocate can prosecute litigant for cheating if they fail to pay his fees?

Conspectus to facts/case needs revaluation. The accused-applicants, already harassed couple, with trust deficit, difference of opinion in matrimonial life, though well educated, approached the complainant for legal advise. This contact was with a hope of proper advise. Naturally, to a person professing a noble profession. The complainant, as Advocate, after hearing the parties handed draft petition for mutual divorce. There is no controversy to this aspect. The fact remains, if the couple has thereafter decided not to prosecute their controversies or discord and to have a happy married life, can it be said to be dishonest intention to approach the complainant for his legal advise. The answer is, there could not be of dishonest intention at initial stage. It is absurd to think, for a couple, to hatch a conspiracy, will approach an advocate making a show of difference in their marital life and ensure the Advocate to part with his valuable knowledge which is his property to deliver by way of a divorce petition. Basic requirement for invoking criminal prosecution is, such intention must be shown to exist at the time of making of inducement. Mere failure to keep promise subsequently, will not lead to cheating. There is no element by the accused-applicant to induce the complainant by any representation to draft petition and thereafter back out.

11. Even if as the complainant says, his case squarely comes within the parameters of Section 415 of I.P.C. the above referred factual situation illustrates the scenario, wishfully was developed by the complainant to achieve his agenda for recovering his professional fees. He knew, being well versed in the field, how to squeeze a litigant, not familiar to court system. Resultantly, gullible litigant has faced the brunt. Reading of the complaint petition as a whole, the basic ingredients for infraction of Section 420 or 415 or 120B of I.P.C. are miserably lacking. Not acting on legal advice and not paying fees could be stretched to a civil wrong, without clamour of criminality. Both the courts were expected to look into the legal position, peculiar facts relating to recovery of fees and then to have adverted for appropriate order in legal frame. There should not be poverty of thoughts. I quite see this litigation has proved a windfall for the couple to unite and contest. However, that will not primarily mean that the couple prognosticate conspiracy. It may be their personal mutual satisfaction, which made the couple not to further prosecute and accelerate the divorce proceeding. It will not amount to an deception, a withdrawal from solemn undertaking or disowning rights. There was no inherent propensity to commit offence. Criminal writ petition is allowed. 

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 685 of 2013

Decided On: 26.07.2013

 Dnyananda Sameer Nilekar Vs. State of Maharashtra 

Hon'ble Judges/Coram:

K.U. Chandiwal, J.

Citation;2013 ALL M R (Cri)3522

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Whether it is mandatory for litigant to file copy of amended plaint after amendment of plaint?

Considering this situation and the law laid down in Bishnu Prasad (supra), I am of the view that when any document undergoes an amendment, if the amendment can be conveniently embodied in the basic document like the plaint / written statement / counter claim / darkhast etc., the same could be permitted even without filing a freshly typed document for the said purpose. For example, if the L.Rs. are brought on record or a minor correction is made in any paragraph, it would not be necessary to insist upon a litigant to submit a fresh typed document after carrying out the amendment. However, if a plaint undergoes an amendment where a few paragraphs, few prayers etc. are introduced, the trial Court or any concerned Court can insist upon the litigant to file a freshly typed document post amendment.

18. In order to facilitate the filing of such a freshly typed document, the trial Court can direct the party to file such a typed document by mentioning in the order granting amendment and a time frame can also be granted in the order of amendment. In short, if a Court permits an amendment to be carried out in 14 days, it could very well observe in the order itself that the concerned litigant would carry out the amendment in the said document and shall also file a freshly typed document embodying the amendment, within the same period. This approach would be in tune with Rule 79 of the Civil Manual which casts a duty on the Court to ensure that the amendment is carried out.

19. I am of the view that all the Courts, to which, the CPC and the Civil Manual are applicable, should follow this procedure. This would eliminate unnecessary expenditure to a litigant who has to carry out a minor amendment, which can be conveniently embodied in the document while carrying out the order of amendment. Where certain paragraphs and prayers are permitted to be added by way of an amendment, the trial Court would insist on filing of a freshly typed document, post amendment, by specifically mentioning in the order allowing the amendment.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9882 of 2018

Decided On: 28.08.2018

 Dagu  Vs.  Gopinath and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(1) MHLJ 375

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When court should not give opportunity to a party to move higher court for redressal?

It cannot be underestimated that it is the privilege of a Court to pass an order one way or the other on merits, in accordance with law, yet a laudable principle is implicit in the system to give a fair deal to exch of the litigants who knocks the door of the Court and implicit therein is a further laudable principle that ever litigant who is aggrieved by the order litigant who is aggrieved by the order of the Court of the first instance has a legitimate right to move the higher Court ask for redress, and therefore, a reasonable opportunity should normally be given in that behalf to all the litigants, provided of course the prayer on the face of if does not appear to be frivolous or vexatious. This principle is essential to be preserved so as to instill a sense of confidence in the system of administration justice.

IN THE HIGH COURT OF BOMBAY

A.F.O. No. 546 of 1980

Decided On: 27.03.1981

Kranti Mohan Guruprasad Mehra Vs. Fatehchand Vasuram Behal

Hon'ble Judges/Coram:

V.S. Kotwal, J.

Citation : AIR 1982 Bom 263

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Whether court can direct litigant to furnish English translation of pleading if it is in Marathi language?

 We have heard the learned Counsel for petitioner. The
petitioners are aggrieved by a circular which is annexed at Exh.A
and B issued by the Civil Judge, Senior Division, Panvel. By the
said circular, the Civil Judge, Senior Division Panvel has directed all
litigants and Advocates that all pleadings which are to be filed in the
Panvel Court should be in Marathi language only. In our view, the
said circular is patently illegal, since English is also the language of
the Court. As such, we direct the Civil Judge, Senior Division, Panel
to accept all the pleadings which are in English language. However,
pleadings in Marathi language be also accepted with undertaking to

furnish English translation of the same if required.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4102 OF 2017

Mrs. Neelam Abhijeet Kadam Vs The State of Maharashtra 

CORAM : V.M.KANADE &
C.V.BHADANG, JJ.
DATE : 2nd May 2017.

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Whether court should allow amendment of pleading made by educated litigant after delay of 27 years?

 As pointed out earlier, the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the court should not adopt hyper technical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the Respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed Under Order XXII Rule 10 Code of Civil Procedure ought not to have been allowed, as the same would cause serious prejudice to the Appellant. In our view, the impugned order, allowing Chamber Summons No. 187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the Appellant and the same cannot be sustained.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 16964 of 2017 (Arising out of SLP (C) No. 614 of 2015)

Decided On: 24.10.2017

 Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: (2018) 11 SCC 722

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Basic concepts of CPC Part 3 definitions

Order S 2(14) of CPC

An order has been defined as the formal expression of any decision of a civil court which is not a decree.

Difference between decree and order.

Both a decree and an order are adjudication by a civil court and both relate to matters in controversy. However the following are six points of distinction between the two:

1) A decree is an adjudication which conclusively determines the rights of the parties with regard to any or all matters in controversy;an order on the other hand may or may not finally determine the rights of parties.

2) A decree can only originate from a suit that is proceeding commenced by a plaint. An order may originate from a suit as well as from any other proceeding commenced by an application.

3)Except in certain suits where two decrees(one preliminary and the other final) are passed, in every suit there is only one decree, whereas many orders can be passed in a single suit.

4) A first appeal always lies from a decree. However no appeal lies from an order unless it is appealable order.

5) While appealability is the rule and non-appealability is the exception in the case of a decree,in the case of an order, it is just the reverse.

6) While in the case of a decree, an aggrieved person has the right to second appeal,in an appealable order,he does not have such a right.

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How to appreciate difficulty of litigant while setting aside exparte order?

The application for setting aside the order on ex parte has been moved on the same day. When the litigant specifies the cause for absence which appears to be reasonable, keeping in view the general experience of human being it should be accepted as satisfactory cause explaining the absence. 'Satisfactory' is a relative term. The difficulty of the litigant has to be understood by keeping oneself in the circumstances in which he lives. The standard of a city dwellers cannot be applied to a villager.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

C.R. No. 1064 of 1994

Decided On: 07.03.1995

 Narayan Singh and Anr. Vs. Rajaram and Anr.

Hon'ble Judges/Coram:

J.C. Chitre, J.

Citation: AIR 1995 MP 200

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Whether case can be remanded to give fresh opportunity to litigant?

The prayer on behalf of the plaintiff-respondents for remand of the matter to the appellate court below for fresh hearing is to be now examined in the background of aforesaid reasons and discussions. It is well settled that the order of remand cannot be passed as a matter of routine. It is not the case on behalf of the plaintiff-respondents that the parties to the suit were not aware of their cases as pleaded and were prevented or precluded from either taking part in the proceeding or from leading evidence on their pleaded cases. It is also not their case that any issue was left undecided. Though learned counsel for the plaintiff-respondents has put much emphasis during course of his arguments that even a second appellate court has got the power to remand the matter back. There is, however, no quarrel to this proposition but the principle is also well-settled that the power of remand is not meant to provide fresh opportunity to a litigant. Merely because of the fact that the conclusions by the learned court below are not legally sustainable or the issues have been wrongly decided, the prayer for remitting the matter back for fresh consideration cannot be granted.

IN THE HIGH COURT OF PATNA

Second Appeal No. 197 of 2013

Decided On: 01.07.2017

 Punam Devi and Ors. Vs. Jai Narayan Rai and Ors.

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Whether litigant can be granted relief if he makes allegation against his advocate behind his back?

 Mr. Karmarkar, learned counsel for the applicant
submitted that the applicant has given the said amount to his earlier
Advocate.   However his earlier Advocate has failed to deposit the
said amount.  But fact remains that as per the undertaking given by
present applicant on 02.12.2014, he has failed to deposit and clear
off all the arrears of maintenance amount. It is open for the present
applicant to take appropriate steps against his earlier advocate if
really he had handed over the amount of maintenance to him.
5. The order dated 02.05.2016 made by the learned Judge
Family Court below Exh.­1 shows that the applicant was absent and
despite the sufficient opportunity, he failed to lead the evidence.  The
observation shows that in spite of sufficient opportunities granted to
the   applicant,   it   is   the   applicant   who   has   failed   to   avail   the
opportunities given to him.   The learned counsel for the applicant
could   not   point   out   anything   from   the   record   to   show   that   the
applicant was present before the Family Court.  After the applicant
chose not to contest the matter voluntarily despite the chances given
to him by the learned Judge  of the Family Court, he should be
thankful to himself.  It is very easy before the higher courts to make
allegations against the earlier Advocate without there being anything

on   record.   This   tendency   of   the   litigants   of   making   reckless
allegations behind the back of an Advocate and then claiming relief
from the Court, has to be curbed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.191/2016
Jayant s/o Bhaduji Wasnik,
V 
Smt. Swarnalata w/o Jayant Wasnik,

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CORAM:­ V. M. DESHPANDE, J.
DATED :­ 28.09.2017

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