Bombay HC: Removal Of Objections In Any Proceedings Before An Authority Does Not Render The Proceedings Time Barred

Correction/removal of objections in any proceeding before a Court or an authority does not render proceeding time barred, particularly when the objection does not alter the nature of the proceeding. In this case, it is an admitted fact that Petitioner had purchased the stamps and it is only a ministerial act that Petitioner's partner's name was voluntarily corrected to include the Petitioner's name. Naturally, therefore, removal of such objection would relate back to the date of the original application. {Para 29 }

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8021 of 2019

Decided On: 09.01.2023

Freedom City Ventures Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Abhay Ahuja, J.

Citation: MANU/MH/0046/2023,2023 Lawweb (Bom HC ) 3.

Print Page

Whether objector can file same objection again if his first objection was rejected and said order has attained finality?

The respondent No. 1 had filed one such application (Exh. 58) way back on 3.3.2011, which stood rejected on merits on 4.8.2011. This order attained finality. Yet, after about five years of such rejection, the respondent No. 1 filed another application objecting to the execution of the decree, virtually on the same ground on which she had filed the earlier application that was rejected.

14. The Executing Court correctly rejected the subsequent application filed in the year 2016 (Exh. 185) and in the order rejecting the said application, the Executing Court recorded in paragraph Nos. 7 to 10, not only about the rejection of the earlier application of respondent No. 1 but also a series of such applications filed by other objectors, which were rejected. The relevant portion of the said order has been quoted above.

15. Despite such glaring facts, the District Court, by the impugned order has allowed the appeal of respondent No. 1 thereby setting aside the order of Executing Court and sending the matter back to the Court for another ground of litigation which the decree holder would be made to suffer. The court below has committed grave error in observing in its judgment and order that the earlier application filed by respondent No. 1 before the Executing Court at Exh. 58 was not decided on merits. This observation is wrong on the face of the record. Apart from this, the Court below has erred in observing that a fair opportunity was not granted to the respondent No. 1 for adjudicating her rights in the suit property. The said observation is clearly unsustainable because the respondent No. 1 exercised her rights by filing the application/objection at Exh. 58, which stood rejected on 4.8.2011 by the Executing Court and such order had attained finality. The Court below seems to have placed emphasis only on procedure, without appreciating the substance of the matter. In any case, even if procedural aspect was to be emphasized, the facts of the present case show that the subsequent application/objection filed on behalf of respondent No. 1 at Exh. 185 deserved to be rejected, because similar earlier application/objection at Exh. 58 stood rejected on 4.8.2011, which had attained finality.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 364 of 2017

Decided On: 26.02.2018

Nandkishor Hemraj Khandelwal Vs.  Chandrakalabai Kisanrao Marotkar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5)MHLJ 379

Print Page

When judgment debtor cannot take objection to execution of decree?

The applicant failed to lead any evidence before the trial court when the proceedings were undertaken in the suit filed by the respondents and now the contentions raised on his behalf are nothing but an attempt to go behind the decree and in an ingenious way to raise objection on merits of the judgment and decree passed by the trial Court, even though admittedly it has attained finality in the absence of any challenge raised to the same on behalf of the applicant.

10. Such a judgment debtor who has failed to place his contentions on merits before the trial Court and who has failed to challenge the judgment and order passed against him, cannot be permitted to raise objection on merits of the decree before the executing Court. It is settled law that the executing court cannot go behind the decree and it has been so noted in a recent judgment in the case of Brakewel Automotive (supra), rightly relied upon by the learned counsel appearing on behalf of the respondents. The relevant portion of the said judgment reads as follows:-

"19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.

20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the excitability thereof.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 131 of 2017

Decided On: 23.03.2018

 Shankarlal Chhanulal Nagpure Vs. Pramodkumar Prahladrai Agrawal and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(4) MHLJ 672

Print Page

Whether third party can file objection to execution of decree for specific performance of contract?

There is no dispute regarding the fact that, the petitioner is third party purchaser during the pendency of litigation. Section 2(10) of CPC defines Judgment Debtor as under:

10. "Judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made.

6. It is clear that the petitioner is not judgment debtor as the decree passed was not against him. The decree holder wrongly arrayed the present petitioner in the execution application as one of the opponents.

7. Section 47 of the CPC reads as under:

47. Questions to be determined by the Court executing decree:-(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

[2] * * * *

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation I. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.

8. It is apparent that the questions raised in the execution proceedings by the petitioner are not questions arising between the parties to the suit or representatives of the parties or purchaser of property in execution of decree. Thus, questions being raised by the petitioner need not really be decided by the Executing Court. Learned counsel for the petitioner admitted that the petitioner was not even a purchaser from the original defendants-judgment debtors to the suit. Not that the same would make any difference as far as Section 47 of CPC is concerned. Thus, the application filed by the judgment debtor objecting to the execution of the decree should have been rejected on this count. Keeping in view Section 47 of CPC, petitioner could not have been arrayed as party to the execution.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 17 of 2014

Decided On: 20.02.2014

Amol Vishwanath Bade Vs.  Dattatraya Dinkar Ghule.

Hon'ble Judges/Coram:

A.I.S. Cheema, J.

Citation; 2014 (3) ALL MR 644 Bom

Print Page

Whether court should postpone decision on objection to admissibility of documents till final hearing of case?

 The admissibility of the document cannot be established by mere filing of the affidavit by the parties but the documents are necessarily required to be tendered by the deponent, while allowing the other side to have an opportunity to contest the admissibility of the document and an appropriate decision of the court on such contest by the parties is necessary. Undoubtedly, this decision has to be prior to exhibition of the documents in evidence as already stated above. Merely because under Rule 4 of Order 18 the parties are allowed to produce documents alongwith affidavit, it cannot be construed that such documents are to be exhibited without testing the admissibility of such documents. In fact, proviso to Sub-rule 1 of Rule 4 of CPC itself discloses that the court has to decide about the admissibility of documents before they are being exhibited in the evidence.

Bombay High Court

Shri Durgashankar S. Trivedi, ... vs Shri Babubhai Bhulabhai Parekh on 22 January, 2003

Equivalent citations: AIR 2003 Bom 487, 2003 (4) BomCR 626, 2003 (2) MhLj 576

Bench: R Khandeparkar

Print Page

Procedure to be followed by court when objection is raised regarding admissibility of any document

 It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves? Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided "at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it-clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).

15. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed an reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery of expenses.

16. We, therefore make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material of any item of oral evidence.

IN THE SUPREME COURT OF INDIA

Crl. MP 862 of 2001 and Special Leave Petition (Crl.) 223 of 2000

Decided On: 22.02.2001

 Bipin Shantilal Panchal Vs. State of Gujarat and Anr.

Hon'ble Judges/Coram:

K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.

Citation: JT 2001(3) SC 120,(2001) 3 SCC 1

Print Page

Whether recitals made in sale deed will prevail over averments made in objection petition?

In re : whether sale was for legal necessity, and thus binding :

83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, defendant No.1, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald statement, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his ‘personal necessity’. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sharers rather he has claimed in the sale deed that he was the exclusive owner of 68 acres 10 guntas area of property and was in possession thereof. He had sold the land for a consideration of Rs.2000 in view of his personal necessity. The sale was made after taking permission from the Deputy Collector Division, Distt. West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment made in the objection petition. Even otherwise under the Mohammedan Law, it was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity to sell the property and bind shares of others. It is not mentioned in sale deed that Hamid Ali Khan had sold for any legal necessity or for the benefit of the entire estate. The recital in sale deed has the evidentiary value and Bala Mallaiah and his successors are bound by what has been mentioned therein. Thus, no case is made out on the basis of the aforesaid submission also to make an interference.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc.
Dated: 21 MARCH 2017

Print Page

Whether objection to application for garnishee order can be decided without framing issues?

The
application filed by the respondent no.1 is under Order 21 Rule 46
of the Civil Procedure Code for a garnishee order which
contemplates attachment of a debt not in possession of the
judgment debtor. The learned Counsel appearing for the
respondent no.1 pointed out that the order of attachment directing
the petitioners to deposit the rent is a garnishee order in terms of
Order 21 Rule 46A of the Civil Procedure Code. On perusal of the
provisions of Order 21 Rule 46C of the Civil Procedure Code, the
law contemplates that where the garnishee disputes liability, the
Court may order that any issue or question necessary for the
determination of liability shall be tried as if it were an issue in a
suit, and upon the determination of such issue the Court shall make
such order or orders as it deems fit. In such circumstances, taking
note of the stand taken by the petitioners in the reply filed to the
application under Order 21 Rule 46 of the Civil Procedure Code to
the effect that the petitioners are not responsible or liable to pay the
amount claimed by the respondent no.1 as according to them they
are not judgment debtors in the execution proceedings, I find that
the learned Judge was not justified to pass the impugned order
without holding an inquiry as contemplated under Order 21 Rule
46C of the Civil Procedure Code.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.182 OF 2012

M/s. Sparrow Technologies Ltd., V/s Mr. Ravinder P. Kumar,

CORAM : F.M. REIS, J.
DATE : 6th MARCH, 2012
Citation: 2012(4) ALLMR 142

Print Page

Whether objection based on want of statutory Notice can be raised by defendants other than municipal corporation?

 It would be, thus, clear that the language of Section 289 is also mandatory in nature as subsection (1) of Section 289 of the Municipalities Act clearly provides that no suit shall lie against the Council or against Committee constituted under the Act in respect of any act done in pursuance of, or in execution or intended execution of the act or in respect of any alleged neglect or default in the execution of the act. In my considered view, in the face of the language as used, it would be for the Court to look into whether the suit would be maintainable for want of notice under Section 289 of the Municipalities Act. Thus, once the fact about absence of a statutory notice under Section 289 of the Municipalities Act is brought to the notice of the Court, the same cannot be brushed aside on the ground that the concerned statutory body, namely Municipal Council has not raised the issue, but is raised by some other defendant. If we were to draw an analogy, the same can be found in Section 3 of the Limitation Act, wherein notwithstanding the fact that any of the parties raise the issue, the Court is obliged and is entitled to look into and ascertain whether the suit is filed within limitation. In view of the language as used in Section 289 of the Act and the observations in the case of Syed Abdul Razzak (supra), with which I am in respectful agreement, the objection that the issue of absence of notice under Section 289 is not raised by the statutory body i.e. the Municipal Council, but by a private defendant, cannot be accepted. I also find that non-raising of the said objection by Municipal Council cannot tantamount to waiver as there is a statutory bar in entertaining the suit in the absence of the notice.

IN THE HIGH COURT OF BOMBAY AT GOA

Civil Revision Application Nos. 21 and 23 of 2015

Decided On: 16.09.2015

 Boshan Developers Pvt. Ltd. and Ors.
Vs.
 Communidade of Bordem and Ors.

Hon'ble Judges/Coram:C.V. Bhadang, J.

Citation: 2015(6) ALLMR 868

Print Page

What are guiding principles for deciding objections to answer key or question of Judicial service exam?

Before dealing with the objections and the reasons in support thereof
it would be useful to note the guiding principles on which objections to the
answer key or the question itself need to be tested.
8. In the decision reported as (1983) 4 SCC 309 Kanpur University Vs.
Sameer Gupta, laying down the scope of judicial review pertaining to an
answer key, the Supreme Court had observed as under:-
“We agree that the key answer should be assumed to be correct
unless it is proved to be wrong and that it should not be held to
be wrong by an inferential process of reasoning or by a process
of rationalization. It must be clearly demonstrated to be wrong,
that is to say, it must be such as no reasonable body of men
well-versed in the particular subject would regard as correct.
The contention of the University is falsified in this case by a
large number of acknowledged text books, which are commonly
read by students in U.P. Those text-books leave no room for
doubt that the answer given by the students is correct and the
key answer is incorrect.
17. ….Certain books are prescribed for the Intermediate
Board Examination and such knowledge of the subjects as the
students have is derived from what is contained in those text-
books. Those text-books support the case of the students fully.
If this were a case of doubt, we would have unquestionably
preferred the key answer. But if the matter is beyond the realm
of doubt, it would be unfair to penalize the students for not
giving an answer which accords with the key answer, that is to
say, with an answer which is demonstrated to be wrong.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment Delivered On : September 30, 2016
 W.P.(C) 8629/2016
ANIL KUMAR 
v
REGISTRAR GENERAL HIGH COURT OF DELHI ..... 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

Print Page

When an objection as to place of suing cannot be allowed by appellate or revisional court?

We find that Pathumma (supra) really Concludes the matter before us. In paragraphs 5 and 6 of the judgment, it is stated as under:

"5. In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential:

(1) The objection was taken in the court of first instance,
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement,
(3) There has been a consequent failure of justice.

6. All these three conditions must coexist. Now in the present case Conditions 1 and 2 are no doubt fully satisfied; but then before the two appellate courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. We called upon Learned Counsel for the contesting Respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any. In this view of the matter we must hold that the provisions of the Sub-section above extracted made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded. We, therefore, refrain from going into the question of the correctness of the finding arrived at by the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree."

10. Obviously Section 21 will apply in the three situations mentioned therein. The first situation refers to the place of suing. The second situation refers to pecuniary limits of the Court's jurisdiction and the third refers to local limits of the Court's jurisdiction. In each of these cases it is stated that an Appellate Court or Revisional Court shall not allow an objection to the place of suing (which refers to Section 16 in the present case) unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. What follows is important. An objection as to place of suing cannot be allowed unless there has been a consequent failure of justice.

IN THE SUPREME COURT OF INDIA

C.A. No. 10589 of 2014 (Arising Out of SLP(C) No. 3960 of 2007)

Decided On: 25.11.2014

K.P. Ranga Rao Vs. K.V. Venkatesham

Hon'ble Judges/Coram:Ranjan Gogoi and Rohinton Fali Nariman, JJ.

Citation:(2015) 13 SCC514

Print Page

Whether property tax can be recovered even if there is objection to said assessment list?

This brings us to the last submission of the appellants that there cannot be any recovery of the tax on the basis of the assessment list so published unless the appellants objections were disposed of under section 151. We were at first inclined to hold in the appellants favour. But a closer scrutiny of the provisions of the Act has persuaded us to reject the submission. Once we have held that the assessment list had been properly prepared in the sense that there had been no legal flaw in its preparation and publication, the valuation as mentioned in the assessment list must be given effect to till the time it is revised or amended under sections 151 or 152. In Shibji Khestshi Tacker v. The Commissioners of Dhanbad (supra) it was said that valuation and assessment lists remain in force until they are altered or amended in accordance with the procedure laid down in the Act. Alteration or amendment can take place pursuant to an order under sections 151 or 152. This is also clear from section 153 which says that "every valuation made by the Chief Executive Officer -- -- shall, subject to the provisions of sections 151 and 152, be final". The phrase 'subject to' means that until and unless the assessment list is revised or amended under section 151 or 152, the assessment list would continue to be final. This reading is in keeping with sub section (2) of section 138 which provides that every valuation and assessment list shall be valid from the date on which the list takes effect in the Corporation and until the first day of the quarter next following the competition of a new list, thus indicating that an assessment list is valid from the date of its completion. Such an assessment list is subject to "any alteration or amendment made" and to the result of any application under Section 150. What needs to be emphasised is that the assessment list as prepared is valid and is unaffected by the mere filing of an application under Section

150. If the result of the application is in favour of the owner, the assessment list must be amended to give effect to such result. Unless the application of the appellants under Section 150ends in a result which is different from the assessment list, the assessment list would continue to be operative, and the respondent can recover taxes on the basis of the assessment and valuation list despite the filing of objections under Section

150. Besides the reference to both sections 151 and 152 in Section 153 makes it clear that the same incidence relating to the recovery of taxes pending either the determination of the objections under section 151 or the adjudication of the appeal under section 152, would prevail. If this construction is not put on section 153, it would mean that by merely filing an objection, the objector would be able to effectively stop the realisation of tax on the basis of the assessment list until such time as his objection is heard and decided. This could not have been legislatively intended. As has been seen in this case that although the appellants had filed their objections in 1995, they are still pending. We, therefore, conclude that it is open to the Corporation to recover the tax as determined on the basis of the impugned assessment lists pending disposal of the appellants' applications under Section 151, until and unless, by virtue of an order under Section 151 or 152 passed thereon, the assessment list is amended or altered.

Supreme Court of India

Rai Vimal Krishna & Ors vs State Of Bihar & Ors on 7 July, 2003

Bench: Ruma Pal, B.N.Srikrishna.

           CASE NO.:
Appeal (civil)  8263 of 2001

Read full judgment here: click here

Print Page

Procedure to be followed by court if objection is raised for asking particular question in cross examination

When the relevancy and the admissibility of a particular question is seriously raised, it is the endeavour of the Court to elicit the answer after recording the objectives. The final decision on such objectives can be decided at the end of the trial. This view has been taken by this Court in the Judgment reported in 2015 SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has been observed at Para 8 thus:

"8. In the case of Irfan Badshah (supra), the learned Single Judge of Delhi High Court considered Section 148 of the Indian Evidence Act, 1872 as also the decision of the Apex Court in the case of Special Cell, New Delhi v. Navjot Sandhi alias Afshan Guru, MANU/SC/0396/2003 : (2003) 6 SCC 641, wherein it was observed thus,

"...the endeavour of the Court wherever there is a serious dispute with regard to the relevancy and admissibility of a question should be to elicit the answer of the witness after noting the objections. The final decision to reject particular evidence as irrelevant or inadmissible can be if required taken at the end of the trial. This procedure benefits even the appellate court as in a case where the question is disallowed or excluded from evidence and the appellate court feels that the same was essential, it is at this stage not required to remand back the matter for re-examination of the witness. Cross-examination is the main tool of an accused to test the veracity of the evidence of the witness and discredit his trustworthiness. Moreover, this does not mean that the trial court will not exercise its discretion in disallowing irrelevant questions."

In such circumstances, I find that the procedure followed by the learned Trial court refusing to allow the questions at the time of the cross examination, is not at all justified, unless the Court comes to the conclusion that the questions are inter alia those which a party cannot be forced to answer and are patent erroneous and put to delay the proceedings and for oblique purpose or have no nexus with the dispute between the parties.

IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)

Writ Petition No. 411 of 2015

Decided On: 09.07.2015

 Ajit Sukhijia  Vs. Edgar Francisco Valles and Ors.

Hon'ble Judges/Coram:F.M. Reis, J.

Citation:2016(2) ALLMR447

Print Page

When objection as to maintainability of suit is not tenable?

In the concluding stages, Mr. Bhatt did attempt to urge that the suit as instituted by Patwardhan was not at all maintainable before the Small Causes Court, because this was basically a dispute between the two persons claiming tenancy rights to the suit premises and the landlord was merely a formal party. Neither in the written statement nor in the memo of appeal, such contention, appears to have been raised by the applicant. That apart, Patwardhan, in his suit seeks declaration that he is the tenant in respect of the suit premises and it is for this purpose that the landlord has been impleaded as a defendant in the suit. If the provisions contained in Section 33 of the Rent Act are taken into consideration, there is no scope to entertain this objection raised by Mr. Bhatt to the very maintainability of the suit instituted by Patwardhan.

Bombay High Court

Dharamvir Ishwarlal Joshi vs Jayant Ramchandra Patwardhan And ... on 21 August, 2015

Bench: M.S. Sonak

CIVIL REVISION APPLICATION NO. 225 OF 2015 ALONGWITH

CIVIL APPLICATION NO. 349 OF 2015

Citation;2016(1) ALLMR 140

Print Page

When objection as to place of suing can be allowed by appellate or revisional Court ?

Sub-sections 1 and 2 of Section 21 of the CPC deal
with powers of appellate or revisional Court to consider the
objections as to the place of suing and pecuniary limits of
jurisdiction of Civil Court. They lay down the conditions for
exercise of power thereunder to allow such objections by the
appellate or revisional Court. These conditions are:-
(I) such objections must be taken in the Court of first
instance at the earliest possible opportunity,
(2) they must be taken in all cases where issues are
settled, at or before settlement of issues.
(3) there has been a consequent failure of justice.
21. In the case of RSDV finance company (supra)
Hon'ble Apex Court has held that the objection as to the place
of suing can be allowed by the appellate or revisional Court only
when above referred three conditions are fulfilled.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR.
SECOND APPEAL NO. 130 OF 2011.

Sureshkumar S/o. Rochiram Jagyasi, Vs Maharashtra State Electricity Distribution Company Ltd.,

CORAM:-S. B. SHUKRE, J.

PRONOUNCED ON :26TH FEBRUARY, 2014.
Citation;2015(2) ALLMR748

Print Page

Tips for taking effective objections in court

Making objections is a key skill for every trial attorney. The more you try cases, the more rote they become. But if you’re relatively new to the courtroom, or it’s been a while since you’ve been there, here’s a system for memorizing possible objections and having them at the tip of your tongue at trial.

This system breaks down the common objections into easy-to-remember words and phrases that you should be able to easily recall during the heat of battle:

1. Incompetent. Is the witness competent to testify at all? Is the witness competent to testify on a particular issue? For example, does the question ask a lay witness for expert testimony, or does the witness lack personal knowledge of the facts?
2. Irrelevant. Does the question call for irrelevant evidence? Evidence must be relevant to be admissible.
3. Hearsay. Does the question ask for hearsay?

Print Page

Supreme Court : Court should decide objection as to court fees as preliminary issue where question of court fee is linked with jurisdiction,

The law on this aspect, thus, should be taken to be as under:

(1) Where the question of court fee is linked with jurisdiction a defendant has a right to raise objection and the court should decide it as a preliminary issue.

(2) But in those cases where the suit is filed in court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of court fee on relief claimed in plaint or memorandum of appeal should be taken as correct.

(3) This does not preclude the court even in suits filed in courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary.

Supreme Court of India

Sujir Keshav Nayak vs Sujir Ganesh Nayak on 12 December, 1991

Equivalent citations: AIR 1992 SC 1526, JT 1992 (1) SC 134, 1992 (1) KLT 283 SC

Author: R Sahai

Bench: K J Shetty, R Sahai

Print Page

Whether Court can convert objection filed in execution application into application U/O 21 R 97 of CPC?

Pointing out Rule 97 Order XXI, C.P. Code, it has been contended on behalf of the appellant that, separate application with necessary particulars and pleadings complaining about resistance or obstruction is required to be made before the Court, while in the present case, initially the objections were filed, and subsequently those objections were converted into the application under Rule 97 which is not at all permissible or contemplated in law because the application over and above necessary pleadings, must contain the relief clause which is wanting here. The contention cannot be accepted. Of course there is no specific provision in C.P. Code for the conversion of Appeal into Revision or vice versa; or from objection filed into the application, or from one application into another, and therefore, for imparting justice fully and finally, or the circumstances of the case so demand, it is open to the court vested with inherent discretionary powers u/sec. 151 C.P. Code to convert a particular application as the application under particular provision, or revision application to an appeal or vice versa or objections filed to the particular application if not specifically prohibited by any provision of any law. Once conversion is made, what is converted will assume all characteristics of the converted form, viz., Revision would assume characeristics of appeal or vice versa & likewise in other cases. There is nothing in law prohibiting the court from converting the objections filed in the execution petition into the application under Rule 97 for the purpose of resisting the obstruction to the possession of immovable property. Of course while filing the objections the relief sought may not have been stated specifically which at the time of filing the real application is pleaded in specific words, but once the conversion is permitted, the pleadings are to be liberally construed and not with a view to find fault with the same as justice is the paramount consideration and the same is not to be thwarted or foiled. The necessary relief under the rules of construction/interpretation can well be assumed because in the objections also impliedly if not expressly the relief is pleaded, may be generally, and the duty of the court is to read the same with necessary implication when conversion is allowed. If required, necessary amendment can be permitted. In the objection initially prayer to reject the appellant's application (Exh. 49) is made, stating that obstruction raised by the appellant are not tenable. Such prayer indirectly conveys the real prayer which ordinarily one would expect or is required to be pleaded. On objections being converted into the application under Rule 97, the same assumed the characteristics of the application envisaged by Rule 97. The discretion exercised is quite just and proper. 1

Gujarat High Court

John Mithalal Desai vs Dineshbhai K. Vora on 29 August, 1997

Equivalent citations: (1997) 3 GLR 279

Print Page

Objection to execution of decree by proxy of JD-No detailed enquiry required

Civil - Delivery of possession - Objection thereof - Order 7 Rule 11 of Code of Civil Procedure ,1908 (CPC) - Trial Court decreed summary suit filed by Appellant under Section 6 of Specific Relief Act, 1963 - When decree was put to execution at time of delivery of possession, Respondent No. 2/ 'Objector' submitted her Petition for objection under Rule 97 of Order 21 of CPC before Executing Court which was rejected by it - However, Appellate Court set aside judgement and order under Appeal remanded case to executing Court for hearing and disposal thereof in accordance with scheme of Rule 97 to 103 of Order 21 of CPC - Hence, this Appeal - Whether objector had independent status - Held, At no point of time in process of progress of suit, Defendant Landlord had ever disclosed that objectors had entered suit plot and that Defendant being illegally dispossessed was not in physical possession of suit property and that present objector Defendant No. 2 was actually in possession - While entire story of objector's having entered, constructed and actually run shop had never been disclosed before Court - Entire story built by Objector was totally articulated - On contrary, according to Judgment Debtor who was his son in possession - Thus, objector's plea was based on falsehood and proved that she was imposter and was set up by Judgment Debtor only - Objector had no independent right, title and interest and no issue at all arose for enquiry - It would, therefore, be unjust and contrary to scheme of law to hold that full-fledged enquiry like in suit would be warranted - Objector's status that she claimed through Judgment Debtor was clear and was seen even without enquiry of any time for purpose of lifting veil - There was no cause of action existing in favour of Plaintiff or that it was barred - Provisions of Rule 11 of Order 7 of CPC were applicable - Objection Petition was ingeniously drafted - Ingenuity thereof being misplaced and exerted at wrong quarter and malicious and for wrong objective did not deserve to be acclaimed and invited blame of ingenuity which was employed to defeat cause of justice - Enquiry as expected to be conducted by District Judge did not have warrant of facts - District Court committed error in approaching to question which was actually involved and got misdirected mostly due to emphatic submissions of phobia of procedure and technicalities of law then real object and spirit thereof - Court set aside impugned order and restored order of trial Court objection to execution by Objector - Appeal allowed.

Where objector to delivery of possession of property has no independent right, title and interest no issue at all arise for enquiry."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Appeal Against Order No. 23 of 2006

Decided On: 20.09.2006

Appellants: Jagdish s/o Motilal Joshi 

Vs.

Respondent: Chandrapal s/o Tulsiram Bhola and another

Hon'ble Judges/Coram:
A.H. Joshi, J.1

Print Page

Whether court can issue possession warrant during pendency of objection filed by third party under O21 R 97 of CPC?

 In short the

aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes

pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-

holder the remedy available to the decree-holder against such an obstructionist is only under Order

21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as

that course would amount to bypassing and circumventing the

procedure laid down under Order 21, Rule 97.. ..............."1

Supreme Court of India

Shreenath & Another vs Rajesh & Others on 13 April, 1998

Citation;1998IIIAD(SC)624, AIR1998SC1827, 1998(3)ALLMR(SC)213, 1998(3)ALT1(SC), 1998 (2) AWC 1403 (SC), 1998(2)JLJ187(SC), JT1998(3)SC244, 1998-2-LW418, 1998(2)MPJR(SC)1, 1998(2)MPLJ180, 1998MPLJ180(SC), RLW1998(2)SC279, 1998(2)SCALE725, (1998)4SCC543, 

Bench: K Venkataswami, A Misra

Print Page