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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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 court can direct plaintiff to amend his pleading permitting defendant to file additional written statement?

The party which moves the forum is dominus litis and is entitled to decide whether or not to amend the pleading or to pursue the complaint, as it stands. 

11 To recapitulate, in the situation as it stands at present, the appellant could take recourse to either of three courses of action, namely:

(i) pursue the complaint as it stands; or

(ii) amend the complaint to challenge the letter of repudiation; or

(iii) withdraw the existing complaint with liberty to institute a fresh complaint to challenge the letter of repudiation.

12 The error in the order of the NCDRC was to compel the appellant to amend the complaint, as a consequence of which, it granted permission to the first respondent to file a written statement to the amended complaint. The effect of this would be to deprive the appellant of the benefit of urging that written statement cannot be filed at this stage in view of the judgment of the Constitution Bench in Hilli Multipurpose Cold Storage Private Limited (supra). The deprivation of the right to set up such a plea is a matter of prejudice to the appellant which is a result of the impugned order of the NCDRC. We clarify that we have not expressed any opinion on whether the respondent can file a written statement since this does not form the subject matter of the present appeal. We hold that the appellant could not have been directed to amend the complaint to challenge the repudiation of the contract of insurance.

The appellant has stated that it does not wish to do so. This is a decision which has to be taken by the appellant and it cannot be compelled to amend the complaint.

 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 4476-4477 of 2021

M/s Acme Cleantech Solutions Private Limited  Vs M/s United India Insurance Company Limited 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: December 09, 2021

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Whether the defendant can apply for his transposition if the plaintiff is neither withdrawing nor abandoning the suit?

 Having said that, in so far as plea of the legal heirs of Harmeet Singh Vohra for transposition as plaintiffs in the suits is concerned. Order XXIII Rule 1A of the CPC deal with the issue of transposition. The same is reproduced as under:

"1-A. When transposition of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under R.1, and a defendant applies to be transposed as a plaintiff under R.10 of Or. 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."

45. A perusal of Order XXXIII Rule 1-A reveal that an application for transposition can be filed in two contingencies; firstly when the plaintiff withdraws the suit or secondly the plaintiff abandons the suit. In other words, there is no question of transposition in the eventuality, the suit is neither withdrawn nor abandoned.

46. In the case in hand, we are concerned with two suits. A perusal of the application under Order XXIII Rule 3 which I have already reproduced above reveal that the suit being CS (OS) 872/2010 the plaintiff Manjeet Singh Kohli is seeking recording of compromise in terms of the compromise arrived at between him and the defendant Nos. 1 to 8 and 9. To put it differently Manjeet Singh Kohli is neither withdrawing or nor abandoning the suit. So, the application for transposition in CS (OS) 872/2010 is not maintainable.

IN THE HIGH COURT OF DELHI

CS (OS) 872/2010, 

Decided On: 11.06.2020

 Manjeet Singh Kohli   Vs.  Mirajuddin and Ors.

Hon'ble Judges/Coram:

V. Kameswar Rao, J.

Citation: MANU/DE/1234/2020

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Whether the plaintiff should prove his title to the immovable property if the defendant raises the plea of adverse possession?

The learned counsel appearing for the appellant relied upon a judgment of this Court in the case of Pappannan and others v. Kolandasamy reported in 2012 (3) MWN (Civil) 536 wherein it has been held as follows: ?20. At this juncture, I would like to dispel any wrong notion in this regard. There is no authority on the point that once the defendant raises the plea of adverse possession, the plaintiff is automatically relieved of his burden to prove his title on the assumption that the defendants should be deemed to have admitted the title of the plaintiff.

21. I recollect and call up the following maxims:

(i) Affirmantis est probare [He who affirms must prove]

(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.

It is the bounden duty of the plaintiff to prove his case. The burden of proof is ambulatory. If the view of the learned counsel for the plaintiff is accepted, then in a title suit, no sooner the defendants file the written statement pleading adverse possession, straightaway the defendants can be directed to enter into the box and prove their case. But this is not the law on that point. The initial burden of proof in cases of this nature is only on the plaintiff, who should enter into the box and prove his title positively as has been already highlighted supra.

23. If at all the plaintiff succeeds in establishing his title by producing such clinching evidence, then it can be taken that the burden of proof got shifted from the plaintiff's side to the defendants' side and the defendants had to prove positively, their plea of adverse possession. However, the first appellate court started picking holes in the case of the defendants without expecting the plaintiff to prove his case. Wherefore, it is glaringly and pellucidly, palpably and axiomatically clear that the first appellate court erroneously decided the appeal.

Madras High Court

K.Vasanthi vs J.Ramanathan on 20 March, 2018

CORAM: MR.JUSTICE S.S.SUNDAR

Second Appeal (MD) No.493 of 2016 

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Whether burden of proof can be put on plaintiff to prove that there was no legal necessity for transfer of property?

Merely because the burden has been wrongly thrown on the defendants, it cannot be said that the learned First Appellate Court has committed any mistake in law because it has appreciated evidence from both the angles. Plaintiff could not have been asked to place any negative evidence on record to show that, there was no legal necessity. Parties are required to adduce positive evidence and therefore the statement on oath by the plaintiff that defendant No. 1 had no legal necessity to sell the lands was sufficient to hold it accordingly.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 58 of 1995

Decided On: 13.06.2019

Sangnath  Vs.  Babu and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MhLJ 930

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Whether representative suit abate on death of one of plaintiff?

The last two points may be shortly disposed of as they have to be stated merely to be rejected. Point No. (2) was eventually given up as it was completely devoid of substance. Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate. In Raja Anand Rao v. Ramdas Daduram and Ors. 48 I.A.R. 12 it has been said Lord Dunadin at page 16" There was also a point that the person who originally raised the suit and got the sanction having died the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests, but as representatives of the general public. It is plain that the second appeal did not lose its competency on the death of one of the plaintiffs appellants. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 505 of 1974

Decided On: 17.12.1974

Charan Singh  Vs. Darshan Singh and Ors.

Hon'ble Judges/Coram:

K.K. Mathew, N.L. Untwalia and P.N. Bhagwati, JJ.

Citation : AIR 1975 SC 371

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Whether defendant can compel plaintiff to enter into witness box to give evidence?

Order XII, Rule 2 of the Code enables the party to call upon other party to admit, within seven days from the date of service of notice, any document and it further provides that in case the other party refuses or neglects to admit the documents after service of such notice, the party giving notice to produce documents can take further steps and in such situation party which refuses or neglects to produce the documents will have to pay the costs of proving those documents. This provision does not enable the defendant to compel the plaintiff to enter the witness box to give evidence. It only entitles the party giving notice to admit documents to recover the costs incurred by it for proving the documents, irrespective of the result of the civil suit.

6. Order XVI, Rule 1 of sub-rule (2) of the Code provides for the procedure which is required to be followed by a party who desires to obtain any summons from the Court for the attendance of any person. Again this provision does not deal with right of the defendant to compel the plaintiff to enter the witness box to give evidence.

7. Though the submission made on behalf of the petitioner/defendant that examination of Madhusudan is necessary to prove the document which the defendant has produced on record appears to be correct at the first blush, in the absence of any such provision and considering the fact that the defendant and plaintiff No. 1 (Madhusudan) are contesting parties, the prayer made on behalf of the defendant cannot be accepted. The defendant has other options available as per law to prove the documents.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1772 of 2016

Decided On: 27.11.2018

Ramchandra Krushnaji Dhale Vs.  Madhusudan Jhunjhunwala and Ors.

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2019(3) MHLJ 532

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Factors to be considered by court while allowing legal representative of plaintiff on record

From the perusal of the impugned order, it is apparent that the learned trial Judge has not even applied mind so as to whether the right to sue survives or not. Besides, from the perusal of the impugned order, it is not clear as to whether the learned trial Judge has accepted the position as to whether the respondent herein is indeed a legal representative of the deceased plaintiff. At least all this is not reflected from the reading of the impugned order which contains no reasons whatsoever. On the issue as to whether the right to sue survives or not, the petitioner, in the present case, ought to have been heard. Besides, although it is true that the learned trial Judge, at this stage is not expected to go into contentious issues relating to the title, at least prima facie verification as to whether the respondent is the legal representative or nor was required to be made by the learned trial Judge. Since, there is no application of mind on all these relevant aspects, the impugned order dated 3rd September, 2018 is liable to be set aside and is hereby set aside.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 925 of 2019

Decided On: 13.03.2019

 Swapnesh Bhupati Mudliyar Vs.  Subhashchandra Dhondu Narvekar

Hon'ble Judges/Coram:
M.S. Sonak, J.

Citation: 2019(4) MHLJ 892

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Whether Injunction decree will survive to legal heirs of deceased plaintiff?

Therefore, the question in this second appeal is whether the injunction obtained by the plaintiff against the defendants would be rendered nugatory on the death of the plaintiff.

8. There is a distinction between the death of the plaintiff and the death of the defendant. The injunction is operative against the defendants. In fact, the model form of prayers in many suits for injunction would be "restraining the defendants or his men or servants or agents or anybody claiming under or through him". Therefore, on the death of the defendant, all these persons would vanish. Consequently, the question of binding the L.Rs of the defendant by such injunction would not arise. But this will not be the case, if the plaintiff who seeks injunction dies, A decree for injunction obtained by the plaintiff can be succeeded to by his L.Rs and such a right of injunction does not die with the plaintiff. I am fortified in my view by the dictum rendered by the High Court of Allahabad in Krishna Behari Goel v Raj Mangal Persad and Others, which is in the following passage:

"(5) The suit was not of a personal nature at all. Sukhu did not claim any personal right. The injunction sought was that the applicant should not interfere with his possession over the property in dispute. A suit claiming injunction of this nature did not abate on the death of the plaintiff. The cause of action survived to his legal representative who came in possession of the property in dispute".

This position stands further clarified by the leading case of Penn v Lord Baltimore, wherein Lord Chancellor Hardwicke stated in effect as follows:

"The strict primary decree in this Court, as a Court of Equity, is in personam, .....until the defendant do comply with the order of judgment of the Court, which is against himself the defendant personally to do or cause to be done or to abstain from doing some act".

The italicized portion indicates that it is a personal against the defendant against whom injunction is sought for. Therefore, the decree of injunction would become infructuous on the death of the defendant or the party against whom injunction is granted. The person who gets an injunction were to die, certainly his L.Rs will be entitled to the benefit of the decree.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Regular Second Appeal No. 132 of 1993

Decided On: 12.01.1998

Venkubai  Vs The Assistant Commissioner, Sedam, Gulbarga District and Ors.

Hon'ble Judges/Coram:

T.N. Vallinayagam, J.

Citation: 1999(1) Civil Court Cases 119 Kant

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When court should permit transposition of defendants as plaintiffs if plaintiffs are willing to withdraw their suit ?

On the other hand, the law of procedure in relation to withdrawal and
adjustment of suits is contained in Order XXIII of Code of Civil Procedure. As per
Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or

abandonment of a part of claim. Rule 1-A thereof1 deals with an eventuality
where the plaintiff withdraws his suit or abandons his claim but a pro forma
defendant has a substantial question to be decided against the co-defendant.
This Rule 1-A of Order XXIII CPC reads as under:-
“R.1-A. When transposition of defendants as plaintiff may
be permitted.- Where a suit is withdrawn or abandoned by a
plaintiff under Rule 1, and a defendant applies to be
transposed as a plaintiff under Rule 10 of Order 1, the Court,
shall, in considering such application, have due regard to the
question whether the applicant has a substantial question to
be decided as against any of the other defendants.”
9. It remains trite that the object of Rule 10 of Order I CPC is essentially to
bring on record all the persons who are parties to the dispute relating to the
subject matter of the suit so that the dispute may be determined in their presence
and the multiplicity of proceedings could be avoided. This Court explained the
principles, albeit in a different context, in the case of Anil Kumar Singh v.
Shivnath Mishra: (1995) 3 SCC 147 in the following:-
"7. ….. The object of the rule is to bring on record all the
persons who are parties to the dispute relating to the subjectmatter
so that the dispute may be determined in their
presence at the same time without any protraction,
inconvenience and to avoid multiplicity of proceedings."
10. As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or
abandoning his claim, a pro forma defendant, who has a substantial question to
be decided against the co-defendant, is entitled to seek his transposition as
1 Inserted by the Amendment Act No. 104 of 1976

plaintiff for determination of such a question against the said co-defendant in the
given suit itself. The very nature of the provisions contained in Rule 1-A ibid.
leaves nothing to doubt that the powers of the Court to grant such a prayer for
transposition are very wide and could be exercised for effectual and
comprehensive adjudication of all the matters in controversy in the suit. The
basic requirement for exercise of powers under Rule 1-A ibid. would be to
examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule
1 of Order XXIII and the defendant seeking transposition is having an interest in
the subject-matter of the suit and thereby, a substantial question to be
adjudicated against the other defendant. In such a situation, the pro forma
defendant is to be allowed to continue with the same suit as plaintiff, thereby
averting the likelihood of his right being defeated and also obviating the
unnecessary multiplicity of proceedings.

In the given status of parties and the subject matter of the suit, when the
plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought
permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant
Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1
and 2 immediately sprang up and they were, obviously, entitled to seek
transposition as plaintiffs under Order XXIII Rule 1-A CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7292 OF 2009

R.DHANASUNDARI @ R. RAJESWARI  VS. A.N. UMAKANTH 

Dinesh Maheshwari, J.
Dated:Dated: 06th March, 2019

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Whether court can permit impleading of additional defendants in counter claim?

It is also true that the defendant cannot raise a counter-claim against the co-defendants alone. The counter-claim necessarily has to be between the parties to the suit which means between the plaintiff and the defendants and for that purpose, if third parties are also necessary for considering the question of counter-claim, they also can be impleaded as additional defendants in the counter-claim. The plaintiff is the master of his suit, beyond doubt, and has liberty to add or delete anyone from the party array of the plaint. But equally true is it in a case of a counter-claim, which is as good as a plaint filed by the defendant against the plaintiff and may be some others as well. Hence, I find that the application for impleadment has to be allowed. But the plaintiff has the right to say that the defendant cannot insist on impleading other defendants in his plaint. But nothing prevents the defendant who raises a counter-claim from impleading additional defendants in his counter-claim. Hence the additional defendants are to be impleaded in the counter claim and not in the plaint. To this effect the impugned order is modified.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C) No. 814 of 2016

Decided On: 03.10.2018

Punnakkal Suresh Vs. Saraswathi

Hon'ble Judges/Coram:

Ashok Menon, J.

Citation: AIR 2019 kerala 48

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Procedure to be followed by court if there is collusion between plaintiff and some of defendants

The perusal of judgment in the case of Sunil Chhatrapal v. Y.S. Bagde, (supra) shows that there the learned Single Judge has held that defendants supporting the plaintiff in whole or in part have to lead their evidence first before the other defendants who do not support wholly or in part, the plaintiffs case. Those defendants who fully support the case of plaintiff have to first lead their evidence and cross-examine the witness. Thereafter those defendants who partly support the case of plaintiff have to undertake that exercise. The defendants who do not support the case of plaintiff in any manner i.e. contesting defendants, have to cross-examine at the end and have to tender their evidence at the end.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1082 of 2008

Decided On: 14.11.2008

 Bhujang Nathuji Daf  Vs.  Ramkrishna Daulat Daf and Ors.

Hon'ble Judges/Coram:

B.P. Dharmadhikari, B.P., J.

Citation: 2009(1) MHLJ 683.

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Whether court can strike off defence of defendant even if no application in that respect is made by plaintiff?

 As per the provisions of Order XI Rule 21 of the Code, the party failing to comply with any order, if a defendant is liable to have the defence struck off. This is however subject to the other party applying to the Court for an order to that effect and such order being made on that application after due notice to the parties and giving them reasonable opportunity of being heard. The records indicate that the plaintiff did not move any application for striking off the defence of the defendant and without granting any opportunity to the defendant, the trial Court passed an order below Exhibit-1 and struck of the defence. In absence of any such application by the plaintiff as contemplated by Rule 21 of Order XI of the Code, the defence could not have been struck off in such a manner. Suo motu exercise of powers in this regard are not contemplated by aforesaid provisions that too without notice to the other side. There is therefore failure to comply with the provisions of Order XI Rule 21 of the Code. The order striking out the defence is a drastic order causing prejudice to that party whose defence is struck off. The power in that regard has thus to be exercised after complying with the prescribed procedure.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 520 of 2017

Decided On: 20.07.2018

The Akola Municipal Corporation Vs. Purushottam Punjabrao Gawande

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(1) MHLJ 180

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Whether two different Advocates can conduct case of co-plaintiffs separately?

Mr. Bhabha was unable to point out even a single instance of any case in England in which different counsel were engaged for different plaintiffs who had joined in one suit. On the other hand the learned Government Pleader, Mr. Chandrachud, invited my attention to a very old case Wedderburn v. Wedderburn, (1853) 51 ER 993, decided as far back as in 1853, where the Master of the Rolls observed;

"When persons undertake the prosecutions of a suit they must make up their minds whether they will become co-plaintiffs; for if they do, they must act together. I cannot allow one of several plaintiffs to act separately from and inconsistently with the others."

In fact, I never expected any reported case on this question, because, in my opinion, the practice of one or more counsel appearing for all the co-plaintiffs in a suit jointly and not severally both here and in England has been so uniform and confirmed that there would not be any possibility of any question ever arising of different plaintiffs in one suit being represented by different counsel. The case cited by the learned Government Pleader, however, clears up any difficulty or doubt that might have never existed in regard to this question.

3. It is clear that two or more persons would agree to join as co-plaintiffs in a suit only if there is any common question of law or fact between them, and their respective claims arise out of the same transaction. The law permits these different plaintiffs to join in one action by filing one common plaint only with a view to save multiplicity of suits and consequent wastage of time of the Court. If this is the object of allowing several persons to join as plaintiffs in one action, the object would be frustrated if each of these persons is allowed to be represented by a separate counsel and each one of the counsel is also permitted to be in charge of the case for his own client. I fail to see how, if such things are permitted, the wastage of the time of the Court, which is otherwise intended to be saved by allowing several persons to join together as co-plaintiffs in one action, could at all be saved. On the contrary, far more time would be taken and a number of unnecessary complications would arise in trying one such action if every one of the plaintiffs is allowed to be represented by his own counsel and each counsel is allowed to conduct the case separately for his own client. It may be for this reason that the tradition has taken deep roots both in the courts here as in England that in cases where more persons than one join as co-plaintiffs in one action they should all be jointly represented by one or more counsel. It may be that at some stage or the other of the action some of the plaintiffs might feel that there is a conflict of interest between them and the other plaintiffs. Just for that reason, however, as was held by the Master of the Rolls in the case cited above, such plaintiffs cannot be allowed to engage a different counsel. If they so wish, they might well apply to the Court to transpose them as defendants.

Bombay High Court

Venkatrao A. Pai And Sons Ltd. vs Narayanlal Bansilal And Ors. on 2 August, 1960

Equivalent citations: AIR 1961 Bom 94, (1960) 62 BOMLR 947, ILR 1961 Bom 459

Bench: Shah

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Whether plaintiff has proved his title if defendant has failed to prove his title?

As pointed out by the Apex Court in its decision reported in Brahma Nand v. Mathra Puri, MANU/SC/0295/1964 : A.I.R. 1965 SC 1506, the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant has no title to the property. Applying the above proposition of law, as pointed out by the Apex Court, I am of the firm view that the plaintiff has not established his case, consequently the judgment and decree of the courts below are erroneous and liable to be set aside."
5(af). In other words, aforesaid case law is for the proposition that plaintiff has to succeed or fail on the title he establishes and plaintiff cannot succeed by saying that defendant has no title to the property. To put it in terms of a generic legal principle, plaintiff has to discharge his burden of proof and cannot succeed by picking holes in the defence of defendant.

5(ag). In the instant case, from the narrative and discussion supra, it will be clear that plaintiffs who claim title to the suit property by succession have not been able to establish that Palani Kudumban predeceased Thavasi. To be noted, Palani Kudumban predeceased Thavasi and Thavasi inherited the entire suit property is pivotal and non negotiable for plaintiffs to establish their title. In other words, it is the sheet anchor and bedrock of plaintiffs' case.

5(ah). Having failed in discharging this burden of proof, attempt on the part of plaintiffs to say that it is unlikely that Ayyakutty could have become sole and absolute owner of suit property, it is unlikely that Ex. A.3 would have been executed jointly by two wives of Thavasi and wife of Palani Kudumban in 1947 if Palani Kudumban had predeceased Thavasi are all clearly attempts to pick holes in the case of defendant. Obviously, this is impermissible and plaintiffs cannot succeed on such basis. To be noted, it is not only a mere case of picking holes in the defence of defendant, it is a case of casting a cloud on the defence by making several presumptions and assumptions which are all in the realm of surmises and conjectures.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

S.A. No. 871 of 2002

Decided On: 18.04.2018

 Chinnan  Vs. Sangan and Ors.

Hon'ble Judges/Coram:
M. Sundar, J.

Citation: AIR 2018(NOC) 904 Mad

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Whether plaintiff can file application for reference of case to arbitration?

 A perusal of the above provisions would indicate that the application under Section 8(1) of the Act is envisaged by the defendant only and that sub-section (3) provides that even if application has been made under sub-section (1) and the issue is pending before the judicial authority, the arbitration may be commenced, continued and arbitral award could be made. The said situation can only arise once an application under Section 8(1) of the Act, 1996 is pending before the judicial authority before which action is brought and the plaintiff itself after having filed the suit, without there being any application by the defendant under Section 8 of the Act, cannot seek reference of the action/dispute to arbitration. The legal position regarding filing of the application under Section 8 of the Act, 1996 is clear as laid down in Ardy International (P) Ltd. vs. Inspiration Clothes & U & Anr. : (2006) 1 SCC 417, wherein, the Hon'ble Supreme Court inter alia laid down as under:

"The situation contemplated by Section 8 can arise only at the first instance of an opponent and defendant in a judicial proceeding, or, at the highest, suo moto at the instance of the judicial authority, when the judicial authority comes to know of the existence of an arbitration agreement."

It is also well settled that so long as the defendant has chosen not to file an application under Section 8, the civil court is entitled to proceed to deal with the matters at issue in the suit notwithstanding the existence of an arbitration clause in the contract.

The observations made by Hon'ble Supreme Court cannot be interpreted to mean that even after filing of the suit pertaining to a contract containing arbitration clause and wherein no application under Section 8 of the Act, 1996 is pending, the plaintiff itself can file an application under Section 11 of the Act seeking reference of the dispute to arbitration, as sought to be projected by learned counsel for the applicant.

REPORTABLE

Rajasthan High Court - Jodhpur

M/S Damani Shipping Pvt. Ltd vs M/S Hindustan Zinc Ltd. Co on 23 August, 2018

Bench: Arun Bhansali

Citation: AIR 2018 Raj 168

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Whether plaintiff can take plea of adverse possession to claim ownership over suit property?

 In the first place, we find that this Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala and Anr. MANU/SC/0939/2013 : 2014 (1) SCC 669, has held in para 8 that a plea of adverse possession cannot be set up by the Plaintiff to claim ownership over the suit property but such plea can be raised by the Defendant by way of defence in his written statement in answer to the Plaintiff's claim. We are bound by this view.

33. In the light of law laid down in the case of Gurdwara Sahib (supra), in our view, the plea raised by the original Appellant (Defendant No. 1) in his counter-claim filed against the Plaintiff wherein he sought a declaration of his ownership over the suit land only on the plea of "adverse possession" was not permissible. It is for the reason that a counter-claim is treated as a plaint Under Order 8 Rule 6A(4) of the Code. In other words, in counterclaim, the status of the Defendant is that of the Plaintiff because he seeks a relief for passing decree in his favour relating to the suit land and against the Plaintiff, who is sued in counter-claim as the Defendant as provided in Rule 6A(4) of Order 8 of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2571 of 2008

Decided On: 13.09.2017

 Dharampal (dead) thr. L.Rs. Vs.  Punjab Wakf Board and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:( 2018) 11 SCC 449

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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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Whether examination in chief of defendant can be discarded on application of plaintiff?

 Defendant No. 04 filed his affidavit in chief and in fact, it was read and recorded after verification by the trial court. Therefore, when it has become part of evidence, it cannot be so discarded for which there is no specific provision. When it was enquired with the learned Counsel for the respondent, as to under which provisions of law said application Exhibit 49 has been submitted, initially he pointed out Order XVIII of the Code of Civil Procedure [For short, "C.P.C."] and then submitted that if there is no specific provision, then it should be considered under Section 151 of the C.P.C. I do not agree with this submission. Order XVIII of the C.P.C. deals with hearing of the suit and examination of witnesses. The provision is made in respect of right to begin, statement to be made, order of recording evidence and how evidence shall be in appealable cases, etc. There is absolutely no provision to discard a piece of evidence which has been admitted. The respondent cannot lay his hand on Section 151 of the C.P.C. which is in respect of inherent powers of the court. In fact, the said section can be invoked in order to prevent abuse of process of the court and not to abuse it. After the affidavit of examination in chief of defendant No. 04 was read and recorded, it had become part of the evidence and, therefore, such part of the evidence cannot be discarded. In Banganga Co-operative Housing Society v. Vasanti Gajanan Nerurkar & others [MANU/MH/1020/2015 : 2015 (5) Bom.C.R. 813], this Court has held that the affidavit cannot be withdrawn as it has become part of the record. Similarly, it cannot be discarded when it has become part of the record.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 06959 of 2017

Decided On: 29.11.2017

Shrimant Amrut Rohokale and Ors. Vs. Bhaskar Shrimant Rohokale and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

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