Whether a person can be permitted to file appeal as indigent person if he was denied permission to file suit as indigent person?

 In our view, the dismissal of application made Under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the Plaintiff to file an application/appeal Under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.

31. Once the Plaintiff files an appeal Under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person.

32. This is subject to applicant filing an affidavit as required Under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated Under Order 44 Rule 3(1).

33. So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status.

34. We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated Under Order 44 Rule 3(2) of the Code and dismissed the Appellant's application made Under Order 44 Rule 1 of the Code mainly on the ground that since the Appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier round and such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal Under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above.

36. In other words, if the Appellant is able to prove in the inquiry with the aid of evidence that he is or has become an indigent person since the date of decree appealed from and is therefore unable to pay the ad valorem court fees on memorandum of appeal, his application will be allowed else dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 117 of 2019 (Arising out of SLP (C) No. 19516 of 2014)

Decided On: 07.01.2019

Sushil Thomas Abraham  Vs. Skyline Build. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation: AIR 2019 SC 512

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Whether court can grant final relief at interim stage against non party to suit?

Upon hearing the learned Counsel, I find that admittedly defendant
no. 3 was not a party to the Appeal preferred before the Appellate Court. The relief
of cancellation of registration essentially affects the rights of the defendant no. 3. In
such circumstances, before directing the cancellation of the registration, the
learned Judge ought to have heard the defendant no. 3 in the matter. The findings
of the learned Judge that the Deed of Conveyance and the Tri-partite Lease Deed
was submitted for registration after the exparte Order was passed on 03.04.2004,
cannot be faulted. No doubt, there is a contention raised by the defendants to the
effect that the Deed of Conveyance was executed much before the service of the
Exparte Order. This aspect in any case would have to be examined by the learned
Judge while deciding the suit on merits. After examining the paramount
consideration of granting such injunctions, the Court also has to balance the
equities of the parties. No doubt, a contemptuous act cannot be condoned by a
Court of equity. But, in the present case, it is the contention of the defendants that
much prior to the exparte Order, there were documents executed between the
defendant inter se in connection with the shed, There are also allegations that
possession was also parted in favour of defendant no. 3 pursuant to documents
executed by the defendant nos. 1 and 2. In such circumstances, one will have to
examine whether in the peculiar facts and circumstances of this case and
considering that admittedly the defendant no. 3 and the Goa Industrial Corporation
were not parties to the suit, what could be a just and appropriate relief. The learned
Trial Judge on the basis of the findings in the impugned Order passed by the Lower
Appellate Court, has proceeded to dispose of the application under Order 39 Rule
2-A and 11 of the Civil Procedure Code by striking off the defence of the
defendants. No doubt, the rights of the Plaintiffs would have to be established in the
suit and ascertain whether the transactions intended to be executed were in fact
contrary to the provisions of the Companies Act, 1956 and the effects thereof. In
such circumstances, one will have to grant an appropriate relief in the facts of the
present case. By directing the cancellation of the registration of the deeds, the
learned Judge has in fact granted at this stage, a final relief when the rights of thePlaintiffs have not been established. No doubt, an act committed in contravention
of an Order of the Court is to be dealt with severely and ensure that the illegality
which has been committed is undone in the facts and circumstances of each case.
Admittedly, the transactions which are impugned were with the consent of the Goa
Industrial Corporation who are not parties to the suit and the registration would also
effect their rights. In the present case, the party who is affected is in fact the
defendant no. 3 and the Industrial Corporation who were admittedly not parties to
the suit.

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NOS. 279, 362 AND 626 OF 2006
WRIT PETITION NO. 279 OF 2006
Sachin Y.Mense,

V 
 Shri Sunil Noronha,

 Coram :- F. M. REIS, J

 Dated  : 16th January, 2015.
Citation:2016(5) ALLMR 146

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Whether court or tribunal can extend period of limitation for filing of suit?

There is no case for anybody that even for part of the
day, the Registry was closed. But Section 5 of the Act which
deals with “Extension of prescribed period in certain cases”,
applies only to appeals or applications and not to suits.
Therefore, no court or tribunal can extend the period of
limitation for filing a suit. Even if any cause, beyond the control
of the plaintiff is shown also, the only extension is what is
permitted under Section 4 of the Act, the period coming under
court holiday.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5862 OF 2016
(Arising out of S.L.P.(C) No. 27853 of 2012)

AJAY GUPTA .V RAJU @ RAJENDRA SINGH YADAV

Citation:2016 (5) ALLMR 443 SC

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Whether defendant can add additional defendant in suit?

In this case, the petitioners wanted to implead Basheer

son of the plaintiffs to whom the plaintiffs have released their

rights in the immovable property inherited by them as legal heir

of late Usman as contended by them in the plaint as well as in

their replication and as also the second petitioner herein as

supplemental defendants in the suit and also appoint the            first

petitioner as guardian of the second       petitioner.   The    right to

implead in the suit is always on the plaintiffs as they are the

masters of the suit. If a third party wanted to come on record by

himself, then he can file an application to implead himself in the

suit and if the court is satisfied that he can be impleaded and his

presence is required for proper adjudication of the case, then the


court can allow the third party to be impleaded in the suit. But

the defendant had no right to get any third party to be impleaded

in the plaint. If the defendant wants to implead any party whom

he or she feels required for proper adjudication of the counter

claim between the plaintiffs and the defendant, raised by the

defendant        in the written   statement, then such    party can be

impleaded as additional defendant in the counter claim and not in

the suit. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                   MR. JUSTICE K.RAMAKRISHNAN

        30TH DAY OF SEPTEMBER 2016

                                        OP(C).No. 2866 of 2014 (O)
                                    

PULIKKIPOYIL SALSAMATH USMAN  Vs   PULIKKIPOYIL MOIDEEN KUNHI
                     

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Whether an order permitting withdrawal of a suit or appeal is decree?

In the case of (Rani) Kulandai Pandichi and another v. Indran Ramaswami Pandia Thevan (AIR 1928 Madras 416), it has been held as follows:

"Permission to withdraw a suit decides no matters in controversy and does not confer any rights on a party and the fact that the person withdrawing is precluded from bringing a fresh suit on the same cause of action cannot be said to have that effect. It has been held that an order permitting the withdrawal of a suit or appeal is not a decree within the meaning of the Civil Procedure Code. We need only refer to Patlogi v. Gam [1891] 15 Bom. 370, Jogodindra Nath v. Sarat Sundari Debi - [1891] 18 Cal. 322 and Abdul Hussain v. Kasi Sabu - [1900] 27 Cal. 362"

(emphasis supplied) In the case of Saraswati Bala Samanta and others v. Surabala Dassi and others (AIR 1957 Calcutta 57), it has been held vide para 3 as follows:

"(3) The order recording the withdrawal of the suit is not a decree. There was no question therefore, of drawing the order as a decree. The order recording the withdrawal can however be formally drawn up under R.187 Part I, Chapter 1 of the Civil Rules and Orders, Vol.1, inasmuch as the order directed payment of costs by the plaintiff to the defendant. We, therefore, treat the so called decree as an order."

Supreme Court of India

Kandapazha Nadar & Ors vs Chitraganiammal & Ors on 16 April, 2007

Bench: Dr. Arijit Pasayat, S.H. Kapadia

           CASE NO.:
Appeal (civil)  5107 of 2000

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Whether suit for partition can be defeated by defence of ouster of co-owner?

Ouster is a weak defense in a suit for partition of familyproperty and it is strong if the defendant is able to establish
consistent and open assertion of denial of title, long and
uninterrupted possession and exercise of right of exclusiveownership openly and to the knowledge of the other co-owner.
 This court in Syed Shah Ghulam Ghouse Mohiuddin
and others v. Syed Shah Ahmed Mohiuddin Kamisul
Quadri and Ors (1971) 1 SCC 597
 held that possession of one co-owner is
presumed to be on behalf of all co-owners unless it is
established that the possession of the co-owner is in denial of
title of co-owners and the possession is in hostility to co-ownersby exclusion of them. It was further held that there has to be
open denial of title to the parties who are entitled to it by
excluding and ousting them.
22. A three judge bench of this court in P.Lakshmi Reddy v.
R.Lakshmi Reddy AIR 1957 SC 1789
, while examining the necessary conditions
for applicability of doctrine of ouster to the shares of coowners,
held as follows:
“4. Now, the ordinary classical requirement of
adverse possession is that it should be nec vi
nec clam nec precario. (See Secretary of State
for India v. Debendra Lal Khan [ (1933) LR 61 IA
78, 82] ). The possession required must be
adequate in continuity, in publicity and in extent
to show that it is possession adverse to the
competitor. (See Radhamoni Debi v. Collector of
Khulna [ (1900) LR 27 IA 136, 140] ). But it is
well-settled that in order to establish adverse
possession of one co-heir as against another it is
not enough to show that one out of them is in
sole possession and enjoyment of the profits of
the properties. Ouster of the non-possessing coheir

by the co-heir in possession who claims his
possession to be adverse, should be made out.
The possession of one co-heir is considered, in
law, as possession of all the co-heirs. When one
co-heir is found to be in possession of the
properties it is presumed to be on the basis of
joint title. The co-heir in possession cannot
render his possession adverse to the other coheir
not in possession merely by any secret
hostile animus on his own part in derogation of
the other co-heir's title.
(See Cores v. Appuhamy [(1912) AC 230)]. It is
a settled rule of law that as between co-heirs
there must be evidence of open assertion of
hostile title, coupled with exclusive possession
and enjoyment by one of them to the knowledge
of the other so as to constitute ouster. This does
not necessarily mean that there must be an
express demand by one and denial by the
other.”
23. This Court in Vidya Devi v. Prem Prakash

(1995) 4 SCC 496 held that:

“28. ‘Ouster’ does not mean actual driving out of
the co-sharer from the property. It will, however,
not be complete unless it is coupled with all other
ingredients required to constitute adverse
possession. Broadly speaking, three elements are
necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of
hostile animus, (ii) long and uninterrupted
possession of the person pleading ouster, and (iii)
exercise of right of exclusive ownership openly
and to the knowledge of other co-owner. Thus, a
co-owner, can under law, claim title by adverse
possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time prescribed by law.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1858-1859 OF 2016
(Arising from S.L.P. (C) Nos. 10449-10450/2009)
NAGABHUSHANAMMAL 
V
C. CHANDIKESWARALINGAM 
Citation;(2016) 4 SCC434
Dated;February 26, 2016.

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When decree for execution can be converted in to suit?

This appeal was taken up separately as in course of hearing terms of settlement were mooted. We indicated to the counsel for the respondents that even if there be some force in the plea that a separate suit did not lie (though the argument advanced by Mr. Govindan Nair for the appellant in support of the stand that a separate suit for the reliefs claimed lay was forceful), the suit could as a measure of ex debito justice be treated as an execution petition. There is good authority for converting an execution application in to a suit and there could, in our opinion, be no valid objection to the counter process of converting a suit in to an execution proceeding, particularly when an ill advised widow would on account of some procedural error be likely to be deprived of the fruits of an order of maintenance. Respondents' counsel has also fairly conceded this position. We direct that the suit be treated as an execution application. That being done, there is no question of any limitation.
 a decree for permanent alimony is not extinguished with the death of the husband and the estate is liable to be proceeded against in the hands of the heirs for the satisfaction of the decree.

Supreme Court of India

Smt. Nandarani Mazumdar vs Indian Airlines And Ors. on 1 September, 1983

Equivalent citations: AIR 1983 SC 1201, 1983 (31) BLJR 677, 1983 (2) SCALE 173

Bench: A N Sen, P Bhagwati, R Misra

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