(REPORTABLE )
CIVIL APPEAL NO. 1416 OF 2019
(Arising out of SLP (C) No. 10850/2018)

DB – HONBLE JUSTICE ROHINTON FALI NARIMAN & VINEET SARAN SUPREME COURT OF INDIA

• Specific Relief Act Section 6 Section 115 CPC Temporary Injunction By the impugned judgment, a Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed in which dispossession was acquiesced in A reading of this proviso will show that, after 1999, revision petitions filed under section 115 CPC are not maintainable against interlocutory orders The Court sets aside the impugned judgment and restore the judgment of the Courts below Appeal is allowed.

Relevant Paras:

5) By the impugned judgment dated 10.04.2018, a
Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed on 03.02.2013 in which dispossession was acquiesced in.
learned

6) We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment. First and foremost, the 1999 amendment to the CPC added a proviso Section 115 which reads as follows:
“115. Revision-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.
7) Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi vs. Sarup Singh and Others(1970) 2 SCR 368 this Court held:

“The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the
revision virtually as if it was an appeal.” at Pg.373.
8) Learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Wardenvs. Coomi Sorab Warden and Others (1990) 2 SCC 117. Para 16 of this judgment is set out hereinbelow:
“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:-
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.”
This judgment also makes it clear that when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment.

9) We, therefore, set aside the impugned judgment and restore the judgment of the Courts below.
10) Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial Court should endeavour to dispose of the Suit itself within a period of six months from today.

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TEK SINGH VERSUS SHASHI VERMA AND ANR. Judgement_04-Feb-2019

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+ W.P.(C) 407/2012, C.M. APPL.25579/2015 & 25580/2015 M/S. GREY SHAM AND CO. AND ANR. …..  versus UOI AND ORS.

+ W.P.(C) 4432/2015, C.M. APPL.8048/2015
SALONI MEHROTRA AND ANR. …. versus GNCTD AND ORS. …..

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE S.P. GARG
03/07/17  [ DELHI HIGH COURT ]

Land Acquisition proceedings – The relief claimed in W.P.(C) is that since the property was not taken possession of by the respondents, the acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – The Court notices that the LAC whose primary responsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were builtup and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land – The documents relied upon, i.e. proceedings rule out the inference that mere symbolic possession is taken.

The respondents – GNCTD in their counter affidavit rely principally upon the proceedings of possession dated 22.12.1972. It is urged here that notwithstanding the nature of the pleading which seem to suggest that mere symbolic possession was taken, the fact remains on record that physical possession of the lands was taken and witnessed by both Govind Singh, and Man Singh, the father of Mohan Singh and Govind Singh, as well as one of the petitioners. These too were partners of Greysham and Company which is the first petitioner in the W.P.(C) 407/2012. The GNCTD furthermore submits that the position of the first petitioner in W.P.(C) 407/2012 in respect of said concerned land is also that it was in effect a licensee of the MCD and admitted as such in response to the notice by the MCD, involving deposit of arrears of damages for unauthorized occupation of a portion of the suit property. It is submitted that in this light, the submission of the petitioners that they have been in the continuous possession of the suit lands and that they were never displaced bears out from the record.
9. It is evident from the above narrative that the first petition seeks a direction for denotification and the second proceeds on the footing that the land acquisition proceedings have lapsed. So far as the first claim in the first proceeding is concerned, the GNCTD relies upon the detailed minutes of the denotification committee meeting of 25.02.2010. A look at that document will show that Greysham and Company’s application in respect of the suit property too was considered. The Committee decided not to recommend denotification because the officers of the MCD, “contended that this piece of land is required for establishment of a primary school which will be a feederschool for the existing sr. secondary school in the area.” The petitioners’ endeavor was to submit that there was already an existing school and that it was entitled to alternative land in lieu of acquired land and that consequently, a direction for denotification under Section 48 has to be made. It is consequently urged to acknowledge the claim in W.P.(C) 4432/2015 that in fact actual possession was never taken because if that were the case, the application under Section 48 would not have been maintainable.
10. As far as the claim for denotification is concerned, the Court notices that there is no authority in law to suggest that a citizen who has received compensation and whose lands have been notified for acquisition had a vested right to claim denotification. Whether to leave from acquisition or not is a matter which lies within the exclusive domain of the authority. Sans successful plea of discrimination or utterly arbitrary approach to the request for denotification, the public nature of the process itself would preclude the right to claim denotification. In short, judicial review would be confined to mere considering whether reasons for declining denotification can withstand scrutiny. It would be well to recollect that without establishing illegality, procedural irregularity or lack of bona fides, in the absence of a legal right, an order – statutory or executive, cannot be set aside or characterized as arbitrary. The reasons given by the GNCTD to reject the denotification application cannot be said to be arbitrary, particularly, because the MCD went on to say that the primary school should be established, which would cater as a feeder to the existing senior secondary school in the area.
11. As far as the petitioners’ submission with respect to allotment of alternative land is concerned, no doubt, there are observations to that effect in law. At the same time, the Court notices that the LAC whose primaryresponsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were built-up and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land. That brings the Court to a discussion on the applicability of Section 24(2) of the new Act. By several judgments, it has been established that by virtue of Section 24(2) where acquisition of land has been notified but the process has not been completed, i.e. in the sense that either possession is not taken or compensation not paid within five years, whether awards are made more than five years prior to coming into force of the new Act or whether either possession is not taken of the suit land or compensation not paid within the said five year period, the acquisition is deemed to have lapsed. Now in the present case, there is no dispute that the award was made on 02.09.1972. As far as possession is concerned, again, the petitioners did not dispute having received compensation in 1972-73. The only question which survives consideration is whether possession was taken or not. Here, the petitioners emphasise upon previous proceedings – in terms of the interim order permitting withdrawal dated 07.01.2010; the initial interim order made in W.P.(C) 407/2012 and the plea of the GNCTD in W.P.(C) 407/2012. It is submitted that cumulatively all these establish that compensation within the meaning of law or at least physical possession was never taken. Muchemphasis or stress is laid upon the expression “symbolic” used in para 4 of the GNCTD’s affidavit in W.P.(C) 407/2012.
12. The GNCTD counters this argument with the compensation proceedings of 22.12.1972 and the translated copies – the copies of which have been produced in these proceedings. Significantly, this document was not produced or even relied upon in any of the previous writ petitions – W.P.(C) 3876/1990 and W.P.(C) 407/2012. The petitioners too were aware of these proceedings. The document inter alia reads as follows:
“Possession proceeding in respect of property No.XII/7249 acquired by Award No.28/72-73.
Today on 22/12/72, M/s. Shri Ram Phal Kanoongo along with Ved Singh patwari reached at site of the property No.XII/7249 admeasuring 10951 sq. yards acquired vide Award No.28-72-73 for possession proceedings. M/s Chaman Lal, Kanoongo and Ram Kawar, Patwari were found present at the site on behalf of Municipal Corporation of Delhi. On behalf of owner M/s Girdhari Lal Karan Singh, Shri Man Singh Karta and on behalf of Greysham Company, Shri Govind Singh, Partner were found present at site. Nobody was present at the site on behalf of occupiers on behalf of occupiers at the time of possession proceedings. After taking measurement of this property and after moving the representative of Municipal Corporation of Delhi Shri Chaman Lal Kanoongo around in and outside the property No.XII/7249 measuring 10951 sq. yards along with sper structure and after taking possession, the proprietary possession was handed over to Sh. Chaman Lal Kanoongo. There are twenty-four (24) trees in this property for which compensation has been assessed by the award. There possession was also handed over to Shri Chaman Lal Kannoongo. This possession proceeding was announced in loud voice by beat of drum by Shri Mohan Lal, the watchman of the property. At the time of possession proceeding no hindrance was faced. One copy of this possession proceedings was handedover to Shri Chaman Lal, Kanoongo, Land and Estate Department of Corporation.
Sd/-illegible Sd/-Man Singh 22/12 22/12/72
Sd/-GovindSingh Sd/-Illegible Kgo.LA
sd/-illegible 22-12-72
Sd/-illegiblepat(LA) 22-12-72
Page 10 of 12
Sd/- illegible
Kgo.L&E, MCD/22/12/72”
13. It is immediately evident from a reading of the above document that the possession taken of the property was in absolute terms and not subject to any conditions. Furthermore, late Sh. Man Singh and one of the petitioners, Govind Singh, were parties to these documents and had signed it. As against this, the reliance by the petitioner with respect to the admissions made in the pleadings, in the opinion of the Court, is inconsequential. It is important here to notice that for reasons best known, the GNCTD did not advert to the possession proceedings of 22.12.1972 in the sense that the documents were never part of any of the records in W.P.(C) 3876/1990 and W.P.(C) 407/2012. They have been produced for the first time in answer to W.P.(C) 4432/2015.
14. As to the effect of this documents, the Supreme Court has ruled in DDA v. Sukhbir Singh and Ors. AIR 2016 SC 4275 by falling upon previous judgments in Raghbir Singh Sehrawat v. State of Haryana 2012 (1) SCC 792 and Banda Development Authority v. Moti Lal Agarwal 2011 (5) SCC 394 that there is no fixed criteria or set pattern of acquiring or taking over possession of acquired lands. Quoted with approval, the observations oinBanda Development Authority (supra) visualizing five situations and at the same time stating that they are not exhaustive, in Sukhbir Singh (supra) itself the Court approved the mode of acquisition, i.e. recording that the officials/authorities of the Government had visited the site and recorded the taking over of possession. Having regard to this position in law, the Court is of the opinion that in the present case too, the documents relied upon, i.e. proceedings dated 22.12.1972 rule out the inference that mere symbolic possession is taken.

15. For the foregoing reasons, the Court holds that Section 24(2) of the new Act has no application to the circumstances and facts in these writ petitions. W.P.(C) 407/2012 and W.P.(C) 4432/2015 are, therefore, dismissed.

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M:S. GREY SHAM AND CO. AND ANR. versus UOI AND ORS. + W.P.(C) 4432:2015, C.M. APPL.8048:2015 JUDGMENT THE LAW LITERATES

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K.L. Suneja v. Manjeet Kaur Monga

CA 1401/19 31/01/23

DOUBLE BENCH CORUM [HON’BLE JUSTICE M.R. SHAH & HONBLE JUSTICE S. RAVINDRA BHAT  ] [ SUPREME COURT ]

• Order XXI CPC Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation to ensure that the amount payable is placed at the disposal of the person entitled to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker’s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or ‘payment’ is complete.

Relevant Paras:

30. The rule was explained in another decision of this court, in V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd:9
“A bare perusal of the aforesaid provisions makes it amply clear that the scope of Order XXI Rule 1 of the Code of Civil Procedure is that the judgment debtor is required to pay the decretal amount in one of the modes specified in Sub-rule (1) thereof. Sub-rule (2) of Rule 1 provides that once payment is made Under Sub-rule (1), it is the duty of the judgment debtor to give notice to the decree-holder through the Court or directly to him by registered post acknowledgement due. Sub-rule (3) of Rule 1 merely indicates that in case money is paid by postal money order or through a bank under Clause (a) or Clause (b) of Sub-rule (1) thereof, certain particulars are required to be accurately incorporated while making such payment. Sub-rules (4) and (5) of Rule 1 states from which date, interest shall cease to run-in case amount is paid under Clause (a) or (c) of Sub-rule (1), interest shall cease to run from the date of service of notice as indicated Under Sub-rule (2); while in case of out of court payment to the decree-holder by way of any of the modes mentioned under Clause (b) of Sub-rule (1), interest shall cease to run from the date of such payment.”
31. The provisions of Order XXI are applicable to decrees of civil court. However, they embody a sound policy principle, that if the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it. This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation
19
9 V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd., 2014 (5) SCC 577, dated 1st April 1947.

20
to ensure that the amount payable is placed at the disposal of the person entitled
to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker’s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or ‘payment’ is complete.
32. In the present case, the complainant was aware that the Pay Order had been tendered by the developer to her; nevertheless she filed the original Pay Order with her complaint, and did not seek any order from the MRTP Commission at the relevant time. The pleadings in the complaint did not disclose that the Pay Order was filed in the Commission, to enable the developer to respond appropriately. In these circumstances, the developer’s argument that the rule embodied in Order XXI, Rule 4 CPC, is applicable, is merited. The developer cannot be fastened with any legal liability to pay interest on the sum of ₹ 4,53,750/- after 30th April 2005.
33. This court is also of the opinion that the complainant’s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail. The records nowhere disclose any fault on the part of the developer; on the other hand, the complainant did not take steps to protect her interests. It has been held by this court, in Sailen Krishna Majumdar v Malik Labhu Masih10 that in such cases, even if equities are equal, the court should not intervene:
10 Sailen Krishna Majumdar vs. Malik Labhu Masih, 1989 (1) SCR 817, dated 21st February 1989.

“Equity is being claimed by both the parties. Under the circumstances we have no other alternative but to let the loss lie where it falls. As the maxim is, ‘in aequali jure melior est conditio possidentis’. Where the equities are equal, the law should prevail. The respondent’s right to purchase must, therefore, prevail.”
In the present case too, the complainant cannot claim interest from the developer, who had returned the Pay Order. As discussed, at the time of filing of the complaint, she could have chosen one among the various options to ensure that the amount presented to her was kept in an interest-bearing account, without prejudice to her rights to claim interest later. In these circumstances, no equities can be extended to her aid.
34. As regards the complainant’s appeal, the contention is that the impugned order is in error, because the Tribunal ought to have directed that the developer ought to have been directed to pay interest on the sum of ₹ 4,53,750/- from 4th October 1993 till the date of its realization i.e., 7th May 2016. This plea is plainly untenable, because the interest payable for the past period was concluded in the previous proceedings. The complainant did not point to any rule or binding legal principle which obliged the developer to pay such interest, or justify the direction in the impugned order, by showing how such liability arose in the facts and circumstances of this case.

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K L Suneja & ots vs DR. (MRS.) MANJEET KAUR MONGA (D) THROUGH HER LR & ANR_Judgement_31-Jan-2023 Supreme Court The Law literates

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Jagdish vs Sardool RSA 4130/11 28/03/23 [CORAM: HON’BLE MR.JUSTICE H.S.MADAAN

[ PUNJAB HARYANA HIGH COURT 

• Specific Relief Act Section 34 Suit for Passage Seeking dismissal of suit Defendant contends that no cause of action arose to the plaintiff to bring the suit and he had done so just to cause harassment to the defendants Plaintiffs claimed that partition has not been formalised and the passage claimed is only access road to his land Presence of Plaintiff was recorded in the roznamcha while demarcation of land for private partition No mention in the roznamcha regarding any passage having been left through land of defendants, for use of the plaintiff as approach to the chunk of land allotted to him during partition – Thus the stand of the plaintiff that land has not been formally partitioned stood nullified – Suit dismissed.

Relevant Paras:

4. On getting notice, the defendants appeared and filed written statement admitting that plaintiff and defendants had a joint khewat earlier measuring 150 bighas 8 biswas. As per the stand taken by the defendants, the parties are in cultivating possession of the same since 27.4.1978; it was partitioned with mutual consent and mutation No.824 was sanctioned in that regard on 27.4.1978; the defendant No.1 has installed his tubewell in khasra No.327/1 besidesconstructing a kotha therein with which the plaintiff has no concern; as a matter of fact, he is no more co-sharer in the land after the partition as mentioned supra; no passage is in existence at the spot as alleged by the plaintiff, rather it is joint land of defendants and is in their cultivating possession; no cause of action arose to the plaintiff to bring the suit and he had done so just to cause harassment to the defendants. The defendants prayed for dismissal of the suit.
5. The plaintiff had filed replication controverting the allegations in the written statement whereas reiterating the averments in the plaint.

9. The plaintiff was aggrieved by the said judgment and decree and he had filed an appeal before the Court of District Judge, Patiala, which was assigned to Additional District Judge, Patiala, who vide judgment and decree dated 22.3.2011 accepted the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff to the extent that their exists a passage as depicted in the site plan attached with the report of the Local Commissioner dated 29.5.2001. Accordingly, defendants were restrained from interfering in the peaceful use of the passage by the plaintiff as depicted in the site plan attached to the report of Local Commissioner dated 29.5.2001. However, the findings with regard to partition having already taken place was affirmed.

14. However, the First Appellate Court of Additional District Judge, Patiala by ignoring the cogent and convincing evidence brought on record by the defendants showing absence of any passage, went on to rely upon the oral evidence as well as report by Local Commissioner so as to come to the conclusion that such passage is there. It is a clear case of misappraisal of evidence and wrong interpretation of law. The law is well settled that documentary evidence takes precedence over the oral evidence and revenue record is best type of evidence to see the ownership and possession of the land bearing khasra numbers as well as existence of any passage therein. When no such passage is reflected in the revenue record giving undue importance to report of Local Commissioner, who goes to the spot for a short time and with possibility of his susceptibility for giving a wrong report being there, the First Appellate Court was not justified in placing too much reliance upon the report of the Local Commissioner while drawing an inference that such passage was actually there at the spot being used by the plaintiff and while saying so ignoring overwhelming cogent and convincing evidence to the contrary available on the record.

15. Learned counsel for the appellant has stated that the partition has become final since order passed in that regard had been affirmed by Financial Commissioner Revenue Punjab vide order dated 10.8.2022, copy of which has been placed on record and an application been filed on behalf of the appellant to produce it by way of additional evidence.

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Jagdish Singh RSA-4130-2011(O&M) Versus Sardool Singh @ Sahurat Singh alias Suhrid Singh

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IDRISH ALI vs GANESH CRPIO 215/22 02/11/22 [ DEVASHIS JJ ]

[ GAUHATI HIGH COURT ]

Order 41, Rule 27 CPC Additional evidence before Appellate Court Held, that application for taking additional evidence on record at an appellate stage is to be heard at time of final hearing of appeal First Appellate Court had rejected the said application even before hearing of appeal has commenced and also without taking into consideration as to whether said evidence is required to be taken on record in order to pronounce judgment or for any substantial cause The reason assigned that plaintiff/appellant is trying to fill up lacuna, is not relevant for adjudication of an application under Order 41, Rule 27 (1) of Code Impugned order set aside.

Relevant Paras:

6. From the perusal of the above quoted paragraphs of the judgment, it would be clear that the Supreme Court observed that when an application for taking additional evidence on record at an appellate stage is filed, the same is to be heard at the time of final hearing of the appeal at the stage when after appreciating the evidence on record, the Court reaches the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. The Supreme Court further observed that in case the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of a total and complete non-application of mind as to whether such evidence is required to be taken on record to pronounce the judgment or not remains inconsequential/inexecutable and is liable to be ignored. Now coming to the facts of the instant case, it would be seen that the Appellant/the Plaintiff had filed this application under Order XLI Rule 27 (1) (b) of the Code to adduce additional evidence at the appellate stage. The reason assigned in the application was that the certified copies of Exhibit 4 and 6 were duly adduced during the trial. However, the Trial Court rejected the same and on account thereof the suit was dismissed for which the Appellant/the Plaintiff have filed the application for adducing the registered Deeds of Sale bearing Nos. 2983/2009 and 2984/2009 in original.

7. The learned First Appellate Court contrary to the law laid down by the Supreme Court in the case of Ibrahim Uddin (supra) as quoted hereinabove had rejected the said application even before the hearing of the appeal has commenced and also without taking into consideration as to whether the said evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause. The reasons assigned in the impugned order is that the Plaintiff/the Appellate is trying to fill up the lacuna which is not relevant for adjudication of an application under Order XLI Rule 27(1) (b) of the Code in as much as observed by the Supreme Court the reason has to be as to whether such additional evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause. Accordingly, the impugned order dated 27/7/2022 is interfered with and set aside.

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Md Idrish Ali VERSUS GANESH DAS AND 4 ORS.

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KHANNA vs S C KHANEJA RCREV 299/16 24/05/23 [ MANMEET JJ ]

[ DELHI HIGH COURT ]

Section 14(1)(e) Eviction Alternate accommodation Premises located on Kasturba Gandhi Marg in New Delhi Held, respondent (property owner) and other members of the HUF own several office premises on KG Marg and Naurang House Plea of landlord that these offices are not suitable for starting a coaching center because they are already let out to corporate tenants and don’t provide the required contiguous area Basement portion of subject property is mentioned, but it is stated to be affected by serious seepage issues and sewage water, making it unsuitable for use First-floor portion is occupied by HDFC Bank and is not available Portions on second floor fell vacant at different times, but respondent either re-let them or used them for personal purposes or a record room These portions are considered unsuitable for coaching center due to separate access and lack of contiguous space Thus, respondent doesn’t have any suitable alternate accommodation and eviction order upheld. [Paras 26 to 36]

Relevant Paras 

26. With respect to the office premises owned by the Respondent and the other members of the HUF in buildings located on K.G. Marg, though oral arguments were not addressed by the Petitioner however, in the tabulated list filed on 18.02.2023, the said offices are enlisted, which are as under:
Sl. No. 1.
2.
3.
4. 5.
Property Address
712, Kailash Building, KG Marg, New Delhi
408, Kailash Building, KG Marg, New Delhi 407, Kailash Building, KG Marg, New Delhi 310, Naurang, House, KG Marg, New Delhi 309, Naurang House, KG Marg, New Delhi
Area
1015 Sq. ft 707 Sq. ft 1211 Sq. ft 486 Sq. ft 486 Sq. ft
26.1. In the tabulation filed on 03.02.2023, the Respondent has explained that the commercial offices located on K.G. Marg are neither available nor suitable for the reasons set out therein.

26.2. The Respondent has explained the unsuitability and unavailability of each of the premises specifically. It has been pointed out that the area of each of the said premises is in the range of 486 sq. ft. to 1211 sq. ft. It is stated that there is no contiguous area of 3800-4000 sq. ft. owned by the Respondent (and his family members) in any one building and therefore it is not suitable for starting the coaching centre. The Respondent has also explained that the said office premises have been let out along with other co- owners of adjoining spaces, to corporate tenants, as per the market practice prevalent in such buildings located on K.G. Marg.
26.3. In the opinion of this Court, the aforesaid premises in the buildings on K.G. Marg are firstly, not available to the Respondent since they have already been let out to corporate tenants. The Respondent herein in the eviction petition(s) as well as the present revision petition(s) has laid great emphasis on the fact that a contiguous area of 3800 sq. ft. to 4000 sq. ft. area is required to run and operate the coaching centre. In contrast, the premises situated on Kasturba Gandhi Marg, admeasure within the range of 486 sq. ft. to 1211 sq. ft. and therefore, as well the said premises cannot be considered as suitable alternate accommodation.
Portions in subject property
Basement portion
27. The Petitioner(s) have contended that the basement in the subject property which admeasures, 7500 sq. ft., was vacated by the tenant in December 2014, however, the said portion is presently, lying vacant and is under the possession of the Respondent.

27.1. With respect to the availability of the basement in the subject property, the Respondents have stated that the said portion of the building has been adversely affected by serious seepage issues and is gutted with sewage water making it unfeasible for use and occupation.
27.2. This Court is of the opinion that in view of the aforesaid facts, the basement (which is affected with seepage) cannot be considered to be an alternate accommodation available to the Respondents. Further, it is trite that a 1st floor premises would be a preferential location in terms of sunlight, fresh air, and less traffic noise pollution, which would be conclusive for running a coaching centre; and if the landlord has the option to operate from the 1st floor, this Court fails to find any lack of bona fide in the said preference of the landlord.
First floor portion
28. The Petitioner(s) have averred that one portion (admeasuring 1250 sq. ft.) on the 1st floor was let out to HDFC Bank. The Respondent has clarified that the said portion was let out the HDFC Bank two (2) years prior to the filing of the eviction petition and the same is not vacant and therefore not available. The Petitioner(s) have not disputed the said submission and therefore, this Court finds the said submission without any merit.
Second floor portion (s)
29. The Petitioner(s) have contended that the eviction order was passed on 11.02.2016, however, by then one (1) portion admeasuring 1250 sq. ft., on the 2nd floor (on the front side) had fallen vacant in the year 2013; however, the said portion was let out by the Respondent in 2017 and not used for starting the coaching centre.

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judgement KHANNA & ANNADHANAM versus S C KHANEJA & SON (HUF) DELHI HIGH COURT
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ASHWINI CA 324/15 13/01/15 [ Abhay JJ ] [ SUPREME COURT ]

• Hindu Law Partition In a suit filed by a co-sharer, coparcener, co-owner or joint owner, for partition and separate possession of his share qua others, it is necessary for Court to examine nature and character of properties in suit Secondly, how devolution of his interest in property took place consequent upon his death on surviving members of family and in what proportion Thirdly whether properties in suit are capable of being partitioned effectively and if so, in what manner Lastly, whether all properties are included in suit and all co sharers, coparceners, co owners or joint owners, are made parties to suit These issues being material for proper disposal of partition suit, have to be answered by Court on the basis of family tree, inter se relations of family members, evidence adduced and principles of law applicable to case Impugned judgment set aside and case remanded to High Court for deciding first appeal and cross objections afresh SHASIDHAR vs

Leave granted.
2. This appeal is filed by the defendants against
the judgment and order dated 06.12.2012 passed
1
VERSUS
Appellant(s)

by the Division Bench of the High Court of Karnataka Circuit Bench at Dharwad in Regular First Appeal No. 3052 of 2010, which in turn arises out of the judgment and decree dated 10.02.2010 passed by the Ist Additional Civil Judge (Sr. Division) at Hubli in Original Suit No. 73 of 2004.
3. In order to appreciate the short issue involved in this appeal

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Shasidhar & Others Vs Ashwini Uma Mathad & Anr. Judgment Supreme Court the law literates

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MAYA vs YASH CSOS 2254/13 27/04/15 [ Jayant JJ ] [ DELHI HIGH COURT ]Leave to defend dismiss

• Suit for Recovery Application under Order 37 Rule 3(5) of the CPC seeking leave to defend the suit. Plaintiff agreed to give a “dasti” loan of Rs. 45 lacs to the defendant. Defendant acknowledged having received the said sum of Rs. 45 lacs in cash vide receipt. Defendant is stated to have handed over an original signed receipt to the plaintiff with two cheques respectively drawn on Corporation Bank, Noida to enable the plaintiff to realise the sum on the stipulated date. However, I have already held in First Lucre Partnership Co. vs. Abhinandan Jain (supra) in somewhat similar facts and circumstances that the suit is based on a receipt issued by the defendant and not on the basis of the unpresented cheques. The present suit is not based on the unpresented cheques but is based on the receipt executed by the defendant showing receipt of Rs. 45 lacs as a loan. Defendant has failed to show any worthwhile defence to the case of the plaintiff. The defence is entirely moonshine and frivolous. Defence is entirely moonshine and frivolous. The receipt showing receipt of Rs. 45 lacs has been placed on record duly corroborated by post dated cheques. All three documents are duly signed by defendant. The primary defence that the receipt was executed without receipt of any money whatsoever is a complete sham defence with no basis whatsoever. It is not possible to grant leave to defend to the defendant on this defence on other pleas taken. Application dismissed.

10. Coming to the third contention of the defendant about cheque having been signed by Shri Yash Chhabra in the capacity of Director of M/s Sanya Fibre Private Limited whereas the receipt is signed by the said Yash Chhabra in the individual capacity. This contention again appears to be misplaced and without any merits. The receipt executed by the defendant Mr.Yash Chhabra specifically states that payment has been received by the defendant against cheque No.690846 and 690845 i.e. the cheques issued by the said M/s Sanya Fibre Private Limited. The signatory of the cheque and the receipt is the same i.e. Mr.Yash Chhabra. What persuaded the defendant i.e. Mr.Yash Chabra to issue cheques from the account of M/s Sanya Fibre Private Limited? It was for him to have explained. His own conduct and acts cannot constitute a ground for defence of the present suit. There is no attempt even to explain the relationship between the defendant and the M/s Sanya Fibre Private Limited. In fact a perusal of the documents filed by the defendants show that the defendant himself has filed on court record IT returns and bank statements of M/s Sanya Fibre Private Limited. He has also filed along with list of documents a list of shareholders of M/s Sanya Fibre Private Limited. The shareholding of M/s Sanya Fibre Private Limited shows that bulk of the shares the owned by the defendant himself. A small amount of shares are owned by his wife, son and daughter. It is a family company wholly controlled by the defendant and his family. The plea is clearly without merits.
11. Coming to the fourth contention. It is contended that the cheques
cannot be the basis of a suit under Order 37 CPC. The contention of the defendant is that the cheques were not presented and hence a suit does not lie under Order 37 of CPC, in view of the judgments cited by the defendant. There can be no dispute with the said contention. The Division Bench in Bal Dev Singh vs. Rare Fuel and Automobiles Technologies (P) Ltd. (supra) has categorically held so.
However, I have already held in First Lucre Partnership Co. vs. Abhinandan Jain (supra) in somewhat similar facts and circumstances that the suit is based on a receipt issued by the defendant and not on the basis of the unpresented cheques. The present suit is not based on the unpresented cheques but is based on the receipt executed by the defendant showing receipt of Rs.45 lacs as a loan.
12. One cannot also ignore section 139 of the Negotiable Instruments Act which provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for discharge, in whole or in part, of any debt or any other liability. Hence, an unpresented cheque cannot be a basis of a suit under Order 37 CPC. However, the plaintiff can certainly use it to support the receipt dated 20.01.2011 i.e. it would have evidentiary value.

13. In my opinion, the facts of the above case fall in the category (d) which have been narrated by the Supreme Court in the case of M/s.Mechelec Engineers & Manufacturers vs. Basic Equipment Corporation (supra). The defendant has failed to show any worthwhile defence to the case of the plaintiff. The defence is entirely moonshine and frivolous. The receipt showing receipt of Rs.45 lacs has been placed on record duly corroborated by post dated cheques. All three documents areduly signed by defendant. The primary defence that the receipt was executed without receipt of any money whatsoever is a complete sham defence with no basis whatsoever. It is not possible to grant leave to defend to the defendant on this defence on other pleas taken. Application is dismissed. CS(OS) 2254/2013
14. As the above application for leave to defend has been dismissed, the suit is decreed with interest @9% per annum from the date of filing of the suit till recovery. Plaintiff shall also be entitled to costs.

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Maya jain Vs Yash Chabra delhi high court the law literates

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DR. S. KUMAR vs RAMALINGAM CA 8628/09 16/07/19 [ (Justice L. Nageswara Rao) & (Justice Hemant Gupta)]

[ SUPREME COURT OF INDIA ]

• Transfer of Property Act, Section 48 Easements Act, Section 41 Easmentary Right Where a person has created different rights in or over the same property and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed will not be legal till such time the earlier transferee has a special contract or reservation which binds her. Since the right of access to defendant No. 2 was reserved in the sale deed, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed – Plaintiff has to maintain the property in any case in terms of the recital in his sale deed Therefore, if the defendant No. 2 or her transferees use the passage, then such use of passage by defendant No. 2 or her transferees cannot be said to be causing any prejudice to the plaintiff – Argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case – Argument is based on the fact that right, title and interest of both the defendants now stand merged in one person after the death of both the defendants. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because the defendant No. 2 has gifted part of land to defendant No. 1 or that after the death of both the defendants, the common legal proceedings inherited the property – Appellants have been granted right to use passage in the sale deed – Thus, it is not easement of necessity being claimed by the appellants. It is right granted to defendant No. 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act High Court suffers from manifest error and, thus, cannot be sustained in law Appeal allowed.

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DR. S. KUMAR & ORS. Vs RAMALINGAM_Judgement_16-Jul-2019 SUPREME COURT
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ISLAMUDDIN vs KAPOOR

CMM 1137/22 01/11/22

[C. HARI SHANKAR, J.] [ DELHI HIGH COURT ]

• Order 7, Rule 14 and Order 11, Rule 1 (5) CPC Additional documents on record Filing of Held, while examining application under Order 11, Rule 1 (5) court not entitled to pronounce on correctness of genuineness of documents which petitioner seeks to introduce Petitioner required to show whether sufficient cause existed for having failed to file additional documents with plaint On facts, failure to file three invoices and handwritten documents along with plaint explained by pointing out that plaint filed during currency of COVID-19 pandemic, during which it was difficult to contact counsel In interests of justice, petitioner allowed to place documents on record subject to costs of Rs. 15,000/- Respondent also entitled to file additional or amended written statements to meet said document

[Relevant Paras]

10. Mr. Sanjeev Kumar has correctly drawn my attention to the following passage from Sudhir Kumar1 in which the Supreme Court has clearly held that while examining the application under Order XI Rule 1(5) of the CPC the court is not entitled to pronounce on the correctness of the genuineness of the documents which the petitioner seeks to introduce:
“35. Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case.Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the
application as additional documents.”
The Court is therefore, only required to examine whether there is sufficient cause for the documents not having been filed along with the plaint. The evidentiary or other value of the document vis-a-vis the controversy in issue in the plaint, is a consideration alien to Order XI Rule 1(5).
11. Significantly, all that the petitioner is required to show under Order XI Rule 1(5) of the CPC is whether the sufficient cause existed for the Petitioner having failed to file the additional documents with the plaint. If there is sufficient cause for the documents not been filed with the plaint, any subsequent or later delay in introducing the documents has not been regarded statutorily as a relevant consideration under Order XI Rule 1(5) of the CPC. In the present case, the failure to file the three invoices and the hand written documents along with the plaint has been sought to be explained by pointing out that the plaint was filed during the currency of the COVID-19 pandemic, during which period it was difficult to contact the counsel. Though the learned District Judge has not chosen to believe this contention, the law laid down by the Supreme Court in Sugandhi4 persuaded me to, in the interests of justice, to allow the documents which the petitioner sought to place, on record to be so placed, subject to costs of ₹ 15,000/- to be paid by the petitioner to the respondents within four weeks from today.
12. Needless to say, since additional documents have been sought to be placed on record, the respondent would also be entitled to file an additional or amended written statement to meet the said document.Any such request if made shall be allowed by the learned Commercial Court.

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judgement MD. ISLAMUDDIN VS S S KAPOOR DELHI HIGH COURT THE LAW LITERATES

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