Supreme Court Quarterly Digest On CODE OF CIVIL PROCEDURE CODE 1908 [January - March 2023]

Section 24 - General power of transfer and withdrawalCode of Civil Procedure, 1908; Section 24, 25 - The power under section 24 of the CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it - Section 25 applies to inter-State transfer of a suit, appeal or other proceeding where both States have a High Court in terms of Article 214 of the Constitution and not to a transfer where both States have a common High Court under Article 231 thereof. (Para 48) Shah Newaz Khan v. State of Nagaland, 2023 LiveLaw (SC) 146Section 33 - Judgment and decreeCode of Civil Procedure, 1908; Section 33, Order XX Rule 4(2), 5; Order XLI Rule 23, 23A, 24 and 25 - Remand - High Court passed order of remand observing that the judgment of the trial court was not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of the Code, as the discussion and reasoning on certain aspects was not detailed and elaborate - Allowing appeal, the Supreme Court observed: This is not a case where the evidence is not adduced and on record. In fact, the first portion of the judgment of the High Court elaborately records the contention of the parties and the facts and evidence relied by the parties - First appeal restored before High Court. Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112Section 96 - Appeal from original decreeCode of Civil Procedure, 1908; Section 96 - Limitation Act, 1963; Section 3, 5 - An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day’s delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. (Para 5) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698Code of Civil Procedure, 1908; Section 96, 149 - Limitation Act, 1963; Section 3, 5 - Being short of sufficient funds to pay court fee is not a reason to condone delay in filing appeal - In such a scenario, an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. (Para 5-10) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698Section 149 - Power to make up deficiency of court-feesCode of Civil Procedure, 1908; Section 149 - Court Fees Act 1870; Section 4 - Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act - In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed - But an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698Order 6 Rule 17 - Amendment of Pleadings.Code of Civil Procedure 1908; Order VI Rule 17 - In dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage. (Para 14) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261Code of Civil Procedure, 1908; Order VI Rule 17 - Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. (Para 38) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189Order 9 Rule 9 - Decree against plaintiff by default bars fresh suit.Code of Civil Procedure, 1908; Order IX Rule 9 - If the right of redemption is not extinguished, the provision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a second suit because as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one. (Para 61, 62) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189Code of Civil Procedure, 1908; Order 9 Rule 9 - It was not the intention of the Legislature to bar the subsequent suits between the parties and the same was evident by the qualifying words, “same cause of action”. Therefore, everything depends upon the cause of action and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 ...

Supreme Court Quarterly Digest On CODE OF CIVIL PROCEDURE CODE 1908 [January - March 2023]

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