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Code of Civil Procedure, 1908 – Civil Trial – Fixing of the date of trial shall be in
consultation with the learned advocates appearing for the parties to enable
them to adjust their calendar. Once the date of trial is fixed, the trial should
proceed accordingly to the extent possible, on day-to-day basis. (Para 2 (v))
Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 – Civil Trial – Trial judges of District and Taluka Courts shall as far as
possible maintain the diary for ensuring that only such number of cases as can be handled on any
given day for trial and complete the recording of evidence so as to avoid overcrowding of the cases
and as a sequence of it would result in adjournment being sought and thereby preventing any
inconvenience being caused to the stakeholders. (Para 2 (vi)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw
(SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 – Delay in civil trial – The statistics relating to the cases pending in each
court beyond 5 years shall be forwarded by every presiding officer to the Principal District Judge once
in a month who (Principal District Judge/District Judge) shall collate the same and forward it to the
review committee constituted by the respective High Courts for enabling it to take further steps. (Para
2 (x)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 – Delay in civil trial – The Committee so constituted by the Hon’ble Chief
Justice of the respective States shall meet at least once in two months and direct such corrective
measures to be taken by concerned court as deemed fit and shall also monitor the old cases
(preferably which are pending for more than 05 years) constantly. (Para 2 (xii)) Yashpal Jain v. Sushila
Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 – Suit for Declaration – In a dispute with respect to determination of
title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the
suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish
the probability of better title, which the plaintiff in the present case, has manifestly failed to do. (Para
22) P. Kishore Kumar v. Vittal K. Patkar, 2023 LiveLaw (SC) 999 : 2023 INSC 1009

Code of Civil Procedure, 1908 – Suit for Declaration – Revenue records are not documents of title. The
Trial Court erred in decreeing the suit by placing on a higher probative pedestal the revenue entries.
(Para 11 – 27) P. Kishore Kumar v. Vittal K. Patkar, 2023 LiveLaw (SC) 999 : 2023 INSC 1009
Code of Civil Procedure, 1908 – there is no difference between a party to a suit as a witness and a
witness simpliciter – Production of documents for both a party to the suit and a witness as the case
may be, at the stage of cross-examination, is permissible within law. (Para 32) Mohammed Abdul
Wahid v. Nilofer, 2023 LiveLaw (SC) 1061 : 2023 INSC 1075

Section 2 (11) – ‘legal representative’

Code of Civil Procedure, 1908; Section 2 (11) – ‘legal representative’ – On the death of a party to the
suit it is the legal representative who is/are entitled to prosecute the proceedings and, in law,
represent the estate of the deceased. The legal representative who is brought on record not only
includes a legatee under a Will but also an intermeddler of the property who would be entitled to sue
and to be sued and/or continue to prosecute the proceedings. (Para 3) Yashpal Jain v. Sushila Devi,
2023 LiveLaw (SC) 916 : 2023 INSC 948

Section 10 – Stay of Suit

Code of Civil Procedure, 1908; Section 10 – Stay of Suit – By virtue of Section 10 CPC, a Court is
prohibited from proceeding with trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit, of course, subject to other conditions mentioned
therein. The object of the prohibition contained in Section 10 CPC is to prevent the Courts of
concurrent jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent
findings. However, this rule of procedure is held not affecting the jurisdiction of the Court to entertain
and deal with the latter suit and does not create a bar to the institution of the suit. The Courts have
also consistently held that Section 10 CPC does not create a bar to the passing of interlocutory orders
including those of injunction. (Para 17) State of Meghalaya v. Union of India, 2023 LiveLaw (SC) 427 :
2023 INSC 522

Section 11 – Res Judicata

Code of Civil Procedure, 1908; Section 11 – Res judicata – An order closing the proceedings is not final
decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC – will
not operate as res judiciata. (Para 55) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023
INSC 317

Code of Civil Procedure, 1908; Section 11 – Res Judiciata – The general principle of res judicata under
Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the
matter directly and substantially in issue in the subsequent suit must be the same matter which was
directly and substantially in issue in the former suit. Further, the suit should have been decided on
merits and the decision should have attained finality. Where the former suit is dismissed by the trial
court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-
joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed,
or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or
letter of administration or succession certificate when the same is required by law to entitle the
plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation,
or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of
action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the
decision, not being on the merits, would not be res judicata in a subsequent suit. (Para 34) Prem
Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Code of Civil Procedure 1908; Section 11 – Res Judicata – Guiding principles summarized. (Para 33)
Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Section 24 – General power of transfer and withdrawal

Code 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) 146 : AIR 2023 SC 1338 :
2023 INSC 176

Code of Civil Procedure, 1908; Section 24 – Transfer Petition – Rejected petitioner’s contention that
since all his witnesses are from Siliguri (West Bengal), language could be a barrier – In a country as
diverse as India, it is no doubt true that people speak different languages. There are at least 22
(twenty-two) official languages. However, Hindi being the national language, it is expected of the
witnesses who would be produced by the petitioner before the MACT, Fatehgarh, U.P. to communicate
and convey their version in Hindi. If the contention of the petitioner is to be accepted, it is the
claimants who would be seriously prejudiced not being in a position to communicate and convey their
version in Bengali. Pramod Sinha v. Suresh Singh Chauhan, 2023 LiveLaw (SC) 596

Section 33 – Judgment and decree

Code 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) 112
Section 47 – Questions to be determined by the Court executing decree

Code of Civil Procedure, 1908; Section 47 – Questions to be determined by the Court executing decree
– Section 47 of CPC confers exclusive jurisdiction on the Executing Court to prevent unnecessary
litigation and to achieve speedy disposal of the questions arising in relation to the execution,
discharge or satisfaction of the decree. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR
2023 SC 2567 : 2023 INSC 544

Code of Civil Procedure, 1908; Section 47 read with Order XXI – An execution proceeding works in
different stages and if the judgment debtors have failed to take an objection and have allowed the
preliminary stage to come to an end and the matter has moved to the next stage, the judgment
debtors cannot raise the objection subsequently, and revert back to an earlier stage of the proceeding.
(Para 7) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936 : 2023 INSC 958

Code of Civil Procedure, 1908; Section 47 read with Order XXI – Executing Court can only go into
questions that are limited to the execution of decree and can never go behind the decree. (Para 5)
Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936 : 2023 INSC 958

Code of Civil Procedure, 1908; Section 47 read with Order XXI – Executing court cannot go beyond the
decree. As a matter of course, an Executing Court is enjoined with the duty to give effect to the decree.
Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as
a matter of exception. The onus lies heavily on the judgment-debtor to convince the Court that a
decree is inexecutable. When an exercise is likely to involve a factual adjudication, it should better be
avoided. (Para 14) Mumtaz Yarud Dowla Wakf v. Badam Balakrishna Hotel Pvt. Ltd., 2023 LiveLaw (SC)
920 : 2023 INSC 949

Code of Civil Procedure, 1908; Section 47 read with Order XXI – Pure civil matters take a long time to
be decided, and regretfully it does not end with a decision, as execution of a decree is an entirely new
phase in the long life of a civil litigation. The inordinate delay, which is universally caused throughout
India in the execution of a decree, has been a cause of concern with this Court for several years. (Para
6) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936 : 2023 INSC 958

Code of Civil Procedure, 1908; Section 47 read with Order XXI – The conduct of a party assumes
significance. If a party is likely to have an undue advantage, despite the availability of an opportunity
to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so
during the execution proceedings. In other words, a plaintiff shall not be made to suffer by the passive
act of the defendant in submitting to the jurisdiction. (Para 15) Mumtaz Yarud Dowla Wakf v. Badam
Balakrishna Hotel Pvt. Ltd., 2023 LiveLaw (SC) 920 : 2023 INSC 949
Section 89 – Settlement of disputes outside the Court

Code of Civil Procedure, 1908; Section 89 (1) – In the event of the party’s failure to opt for ADR namely
resolution of dispute as prescribed under Section 89(1) the court should frame the issues for its
determination within one week preferably, in the open court. (Para 2 (iv)) Yashpal Jain v. Sushila Devi,
2023 LiveLaw (SC) 916 : 2023 INSC 948

Section 96 – Appeal from original decree

Civil Procedure Code, 1908; Sections 96 and 100 – a first appeal and a second appeal arising out of two
proceedings cannot be clubbed and disposed of by a common judgment even though the parties are
essentially the same and the property in dispute is common. Seethamal v. Narayanasamy, 2023
LiveLaw (SC) 342

Code 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 698 : (2023) 1 SCR 449 : 2023 INSC 90

Code of Civil Procedure, 1908; Section 96 and Order XLI – The court of first appeal has a duty to record
its findings qua all the issues raised before it, and in cases where the High Court fails to do the same,
the matter must be remanded to the same court again for fresh adjudication. (Para 20-22) Dheeraj
Singh v. Greater Noida Industrial Development Authority, 2023 LiveLaw (SC) 493 : 2023 INSC 594 : AIR
2023 SC 3110

Code 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 698 :
(2023) 1 SCR 449 : 2023 INSC 90

Section 100 – Second Appeal

Code of Civil Procedure, 1908; Section 100 – A Court sitting in second appellate jurisdiction is to frame
substantial question of law at the time of admission, save and except in exceptional circumstances.
Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after
giving them adequate time to meet and address them. It is only after such hearing subsequent to the
framing that a second appeal shall come to be decided. (Para 27.1) Suresh Lataruji Ramteke v.
Sumanbai Pandurang Petkar, 2023 LiveLaw (SC) 821 : 2023 INSC 846 : AIR 2023 SC 4794

Code of Civil Procedure, 1908; Section 100 – In ordinary course, the High Court in such jurisdiction
does not interfere with finding of fact, however, if it does find any compelling reason to do so as
regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the
conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning
findings of fact, the Court will be required to call for the records of the Trial Court or if placed on
record, peruse the same and only then question the veracity of the conclusions drawn by the Court
below. (Para 27.2) Suresh Lataruji Ramteke v. Sumanbai Pandurang Petkar, 2023 LiveLaw (SC) 821 :
2023 INSC 846 : AIR 2023 SC 4794

Code of Civil Procedure, 1908; Section 100 – Second appeal can be entertained by the High Court only
if the case involves a ‘substantial question of law’. (Para 12 – 14) Appaiya v. Andimuthu @
Thangapandi, 2023 LiveLaw (SC) 811 : 2023 INSC 835 : AIR 2023 SC 4810

Code of Civil Procedure, 1908; Section 100 – Punjab Courts Act, 1918; Section 41 – In appeals arising
out of the state of Punjab or the State of Haryana, courts are not required to frame substantial
questions of law as per section 100 of CPC. (Para 8, 9) Gurbachan Singh v. Gurcharan Singh, 2023
LiveLaw (SC) 562 : 2023 INSC 639

Code of Civil Procedure, 1908; Section 100 – The parameters of an appeal under Section 100, CPC –
Ordinarily, in a second appeal, the court must not disturb facts established by the lower court or the
first appellate court. However, this rule is not an absolute one or in other words, it is not a rule set in
stone – Where the court is of the view that the conclusions drawn by the court below do not have a
basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material
irregularity” the court will be justified in interfering with such finding. (Para 14, 15) Gurbachan Singh v.
Gurcharan Singh, 2023 LiveLaw (SC) 562 : 2023 INSC 639

Code of Civil Procedure, 1908; Section 100 – High Court cannot admit regular second appeal without
framing substantial questions of law. Bhagyashree Anant Gaonkar v. Narendra@ Nagesh Bharma
Holkar, 2023 LiveLaw (SC) 688

Section 114 – Review

Code of Civil Procedure, 1908; Section 114; Order XLVII Rule 1 – Supreme Court Rules, 2013; Order
XLVII of Part IV – An error which is not self-evident and has to be detected by a process of reasoning,
can hardly be said to be an error apparent on the face of record – An error on the face of record must
be such an error which, mere looking at the record should strike and it should not require any long-
drawn process of reasoning on the points where there may conceivably be two opinions. (Para 9-15)
Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2023 LiveLaw (SC) 506 : 2023 INSC 610 : AIR 2023
SC 3845 : (2023) 8 SCC 11

Section 115 – Revision

Code of Civil Procedure, 1908; Section 115 – Where an appealable decree has been passed in a suit, no
revision should be entertained under Section 115 of the CPC against an order rejecting on merits a
review of that decree. The proper remedy for the party whose application for review of an appealable
decree has been rejected on merits is to file an appeal against that decree and if, in the meantime, the
appeal is rendered barred by time, the time spent in diligently pursuing the review application can be
condoned by the Court to which an appeal is filed. (Para 28) Rahimal Bathu v. Ashiyal Beevi, 2023
LiveLaw (SC) 829 : 2023 INSC 861

Section 149 – Power to make up deficiency of court-fees

Code 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 698 : (2023) 1 SCR 449 : 2023 INSC 90

Order 2 Rule 2 – Suit to include the whole claim

Civil Procedure Code, 1908; Order II Rule 2 – A suit for possession and suit for claiming damages for
use and occupation of the property are two different causes of action. Hence, second suit filed
claiming damages for use and occupation of the premises was maintainable after a suit for possession.
(Para 17) Bharat Petroleum Corporation Ltd v. ATM Constructions Pvt Ltd., 2023 LiveLaw (SC) 1031 :
2023 INSC 1042

Order 5 Rule 2 – Copy of plaint annexed to summons

Code of Civil Procedure, 1908; Order V Rule 2 – Service contemplated in terms of Order V Rule 2 of the
Code would imply service of summons along with the copy of the plaint. National Insurance Company
Ltd. V. National Building Construction India Ltd; 2023 LiveLaw (SC) 800

Code of Civil Procedure, 1908; Order V Rule 2 – All courts at district and taluka levels shall ensure
proper execution of the summons and in a time bound manner as prescribed under Order V Rule (2) of
CPC and same shall be monitored by Principal District Judges and after collating the statistics they shall
forward the same to be placed before the committee constituted by the High Court for its
consideration and monitoring. (Para 2 (i)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023
INSC 948

Order 6 Rule 4 – Particulars to be given where necessary

Code of Civil Procedure, 1908; Order VI Rule 4, Order XXI Rules 97 to 101 – Hyderabad Jagir Abolition
Regulation, 1358 – The Supreme Court has upheld the decision of the Telangana High Court, upholding
the title of successors of Ryot Cultivators over the Paigah lands in Hydernagar, Telangana, who had
obtained title to the said lands from their predecessors. The court dismissed the claim of title raised by
rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the ground that it was a
Mathruka property of the late Nawab Khurshid Jah, who was granted a Paigah by the Nizam of
Hyderabad. The Apex Court further ruled that no party to a suit for partition, even by way of
compromise, can acquire any title to any specific item of property or any particular portion of a
specific property, if such a compromise is struck only with a few parties to the suit. Trinity
Infraventures Ltd. V. M.S. Murthy, 2023 LiveLaw (SC) 488 : 2023 INSC 581

Order 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) 261

Code 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) 189 : 2023 INSC 228

Order 7 Rule 11 – Rejection of plaint

Code of Civil Procedure, 1908; Order VII Rule 11 – A plaint which falls within the teeth of the
conditions laid down under Rule 11 of Order VII CPC is liable to be rejected at the threshold for which
the plaint allegations alone are required to be considered and nothing else. (Para 12) ESSEMM
Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

Code of Civil Procedure, 1908; Order VII Rule 11 – For dealing with an application under Rule 11 of
Order VII of CPC, only the averments made in the plaint and the documents produced along with the
plaint are required to be seen. The defence of the defendants cannot be even looked into. When the
ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine
the plaint and see whether any cause of action has been disclosed in the plaint – Merely because
there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion
that the cause of action was not disclosed in the plaint. The question was whether the plaint discloses
the cause of action. (Para 6-9) G. Nagaraj v. B.P. Mruthunjayanna, 2023 LiveLaw (SC) 311

Code of Civil Procedure, 1908; Order VII Rule 11 – Rejection of Plaint – Plaint cannot be rejected in
part. (Para 11) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940 : 2023 INSC 964

Code of Civil Procedure, 1908; Order VII Rule 11 – Rejection of Plaint – the true test is first to read the
plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a
cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively,
where it does not disclose a cause of action, the plaint shall be rejected. (Para 7) Geetha v.
Nanjundaswamy, 2023 LiveLaw (SC) 940 : 2023 INSC 964

Code of Civil Procedure, 1908; Order VII Rule 11 – Rejection of Plaint – The High Court committed an
error by examining the merits of the matter. It pre-judged the truth, legality and validity of the sale
deed under which the Defendants claim title. The approach adopted by the High Court is incorrect and
contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC.
(Para 10) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940 : 2023 INSC 964

Code of Civil Procedure, 1908; Order VII Rule 11 – Rejection of Plaint and Res judicata – As far as scope
of Rule 11 of Order VII of CPC is concerned, the Court can look into only the averments made in the
plaint and at the highest, documents produced along with the plaint. The defence of a defendant and
documents relied upon by him cannot be looked into while deciding such application. Hence, the issue
of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The
reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit,
the judgment of the Trial Court and the judgment of the Appellate Courts. (Para 5 & 6) Keshav Sood v.
Kirti Pradeep Sood, 2023 LiveLaw (SC) 799

Code of Civil Procedure, 1908; Order VII Rule 11 – Rejection of Plaint – While deciding the application
under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not
the averments in the written statement – Plaint is ought to be rejected when it is vexatious, illusory
cause of action and barred by limitation and it is a clear case of clever drafting. (Para 5-8) Ramisetty
Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372 : 2023 INSC 458

Code of Civil Procedure, 1908; Order VII Rule 11 – Rejection of Plaint – No amount of evidence or
merits of the controversy can be examined at the stage of decision of the application under Order VII
Rule 11 C.P.C. (Para 26) Eldeco Housing and Industries Ltd. V. Ashok Vidyarthi, 2023 LiveLaw (SC) 1033 :
2023 INSC 1043

Code of Civil Procedure, 1908; Order VII Rule 11 – Whether an appropriate prayer should have sought,
is a matter ultimately to be decided in the suit and not an issue to be considered while deciding the
application under Order VII Rule 11 of CPC. (Para 5) Sajjan Singh v. Jasvir Kaur, 2023 LiveLaw (SC) 517

Code of Civil Procedure, 1908; Order VII Rule 11, Order XII Rule 6 – Rejection of Election Petition –
Judgement on Admissions – A plain look at the election petition reveals that apart from allegations
pertaining to non-disclosure of criminal cases pending against the appellant, or cases where he was
convicted, other averments and allegations have been made regarding non-compliance with
stipulations regarding information dissemination and the manner of dissemination through
publication in newspapers, the font size, the concerned newspapers’ reach amongst the populace, etc.
The alleged noncompliance with statutory and Election Commission mandated regulations, and their
legal effect, cannot be examined in what are essentially summary proceedings under Order VII Rule
11, CPC, or even under Order XII Rule 6, CPC. Even if the allegations regarding non-disclosure of cases
where the appellant has been arrayed as an accused, are ultimately true, the effect of such allegations
(in the context of provisions of law and the non-disclosure of all other particulars mandated by the
Election Symbols orders) has to be considered after a full trial. The admission of certain facts (and not
all) by the election petitioner cannot be sufficient for the court to reject the petition, wholly. Even in
respect of the undeniable nature of the judicial record, the effect of its content is wholly inadequate to
draw a decree in part. (Para 26) Bhim Rao Baswanth Rao Patil v. K. Madan Mohan Rao, 2023 LiveLaw
(SC) 563 : 2023 INSC 641 : AIR 2023 SC 3574

Order 7 Rule 14 – Production of documents

Code of Civil Procedure, 1908 – Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and Order XIII Rule 1(3),
all three of which, while dealing with the production of documents, by the plaintiff, defendant and in
general, respectively, exempt documents to be produced for the limited purpose of cross-examination
or jogging the memory of the witness. (Para 31) Mohammed Abdul Wahid v. Nilofer, 2023 LiveLaw (SC)
1061 : 2023 INSC 1075

Code of Civil Procedure, 1908; Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and Order XIII Rule 1(3) –
Documents can be produced during cross-examination in civil trial to confront party to suit or witness.
Save and except the cross-examination part of a civil suit, at no other point shall such confrontation be
allowed, without such document having accompanied the plaint or written statement filed before the
court. (Para 31) Mohammed Abdul Wahid v. Nilofer, 2023 LiveLaw (SC) 1061 : 2023 INSC 1075

Order 8 Rule 1 – Written Statement

Code of Civil Procedure, 1908; Section VIII Rule 1 – All courts at District and Taluka level shall ensure
that written statement is filed within the prescribed limit namely as prescribed under Order VIII Rule 1
and preferably within 30 days and to assign reasons in writing as to why the time limit is being
extended beyond 30 days as indicated under proviso to sub-Rule (1) of Order VIII of CPC. (Para 2 (ii))
Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Order 8 Rule 6A – Counter-claim by defendant

Code of Civil Procedure, 1908; Order VIII Rule 6A – An inter-se dispute on the validity of the sale deed
executed between the defendants in respect of the suit land, cannot be considered in the suit for
possession instituted by the plaintiff on the basis of a registered sale deed executed in its favour, as it
would amount to adjudication of a right or a claim by way of counter-claim by one defendant against
his co-defendant, which cannot be permitted by virtue of Order VIII Rule 6A of CPC. Damodhar
Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404 : 2023 INSC 491

Code of Civil Procedure, 1908; Order VIII Rule 6–A (4) – A counter-claim is a virtually a plaint and an
independent suit. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023
SC 2140 : 2023 INSC 471

Order 9 – Appearance of Parties and Consequence of non-Appearance

Code of Civil Procedure, 1908; Order IX – When the defendant counsel had withdrawn his
Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to
engage another counsel. (Para 21) Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd.,
2023 LiveLaw (SC) 653 : 2023 INSC 732 : AIR 2023 SC 3832

Order 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) 189 :
2023 INSC 228

Code 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 of CPC. (Para 52) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC)
189 : 2023 INSC 228

Order 9 Rule 13 – Setting aside Decree ex parte

Code of Civil Procedure, 1908; Order IX Rule 13 and Section 92 (2) – Ex-parte decree – As against the
ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an
application under Order IX Rule 13 CPC seeking for setting aside ex-parte decree; the second, is by way
of filing an appeal against the ex-parte decree under Section 96(2) of the CPC and the third, is by way
of review before the same court against the ex-parte decree. (Para 12) Koushik Mutually Aided
Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

Code of Civil Procedure, 1908; Order IX Rule 13 and Section 92 (2) – Ex-parte decree – The filing of an
application under Order IX Rule 13 CPC as well as the filing of appeal under Section 96(2) of the CPC
against the ex-parte decree are concurrent remedies available to a defendant. However, once the
appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is
withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application
filed under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred
and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after
the dismissal of an application under Order IX Rule 13 CPC is maintainable. (Para 13) Koushik Mutually
Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

Code of Civil Procedure, 1908; Order IX Rule 13 and Order XLIII Rule 1(d) – Ex-parte decree – Against
the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the
decree passed exparte, an appeal is provided. When an application is filed seeking condonation of
delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the
petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal
only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing
such an application is passed, the same is not appealable. (Para 15) Koushik Mutually Aided
Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

Code of Civil Procedure, 1908; Order IX Rule 13, Order XLIII Rule 1 and Section 115 – Ex-parte decree –
Appeal from orders and Revision – When an application or petition filed under Order IX Rule 13 CPC is
dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC.
Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an
application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and effective
appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate
for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order
refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy
under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the
instant case was not maintainable. (Para 16) Koushik Mutually Aided Cooperative Housing Society v.
Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

Order 10 – Examination of Parties by the Court

Code of Civil Procedure, 1908; Order X and Section 89 (1) – All courts at Districts and Talukas shall
ensure after the pleadings are complete, the parties should be called upon to appear on the day fixed
as indicated in Order X and record the admissions and denials and the court shall direct the parties to
the suit to opt for either mode of the settlement outside the court as specified in sub-Section (1) of
Section 89 and at the option of the parties shall fix the date of appearance before such forum or
authority and in the event of the parties opting to any one of the modes of settlement directions be
issued to appear on the date, time and venue fixed and the parties shall so appear before such
authority/forum without any further notice at such designated place and time and it shall also be
made clear in the reference order that trial is fixed beyond the period of two months making it clear
that in the event of ADR not being fruitful, the trial would commence on the next day so fixed and
would proceed on day-to-day basis. (Para 2 (iii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 :
2023 INSC 948

Order 11 – Discovery and Inspection, Admissions

Code of Civil Procedure, 1908; Order XI and XII – The counsels representing the parties may be
enlightened of the provisions of Order XI and Order XII so as to narrow down the scope of dispute and
it would be also the onerous responsibility of the Bar Associations and Bar Councils to have periodical
refresher courses and preferably by virtual mode. (Para 2 (vii)) Yashpal Jain v. Sushila Devi, 2023
LiveLaw (SC) 916 : 2023 INSC 948

Order 17 Rule 1 – Adjournment

Code of Civil Procedure, 1908; Order XVII Rule 1 – The trial courts shall scrupulously, meticulously and
without fail comply with the provisions of Rule 1 of Order XVII and once the trial has commenced it
shall be proceeded from day to day as contemplated under the proviso to Rule (2). (Para 2 (viii))
Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908; Order XVII Rule 1 – Costs of Adjournment – The courts shall give
meaningful effect to the provisions for payment of cost for ensuring that no adjournment is sought for
procrastination of the litigation and the opposite party is suitably compensated in the event of such
adjournment is being granted. (Para 2 (ix)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023
INSC 948

Order 17 Rule 2 – Procedure if parties fail to appear on day fixed.

Code of Civil Procedure, 1908; Order XVII Rule 2 – Any party” refers to the party which has led
evidence or substantial evidence and “such party” refers to that very party which has led evidence or
substantial evidence – Under Order XVII Rule 2, the Court would proceed to pass orders with respect
to any of the parties being absent or both the parties being absent. Whereas the explanation is
confined to record the presence of that party and that party alone, which has led evidence or
substantial evidence and has thereafter failed to appear. (Para 19) Y.P. Lele v. Maharashtra State
Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : 2023 INSC 732 : AIR 2023 SC 3832

Order 17 Rule 3 – Court may proceed notwithstanding either party fails to produce evidence, etc.

Code of Civil Procedure, 1908; Order 17 Rule 3 – The power conferred on Courts under Rule 3 of Order
17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which
seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in
exceptional cases. Physical presence without preparedness to co-operate for anything connected with
the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse
than absence. There must be some materials for a decision on the merits, even though the materials
may not be technically interpreted as evidence. Sometimes the decision in such cases. (Para 52) Prem
Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Order 20 – Judgment and Decree

Code of Civil Procedure, 1908; Order XX – At conclusion of trial the oral arguments shall be heard
immediately and continuously and judgment be pronounced within the period stipulated under Order
XX of CPC. (Para 2 (ix)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Order 20 Rule 18 – Decree in suit for partition of property or separate possession of a share therein

Code of Civil Procedure, 1908; Order XX Rule 18 – Punjab Land Revenue Act, 1887; Section 121 –
Instrument of Partition – For the purpose of interpreting Section 121 of the Land Revenue Act, the
Court can safely draw an analogy from the provisions contained in Order XX, Rule 18 C.P.C. which
pertain to the procedure to be followed on the passing of the decree for the partition of the property.
(Para 28) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074 : 2023 INSC 373

Code of Civil Procedure, 1908; Order XX Rule 18 – Punjab Land Revenue Act, 1887; Section 121 – When
a decision is taken by the Revenue Officer under Section 118 on the question as to the property to be
divided and the mode of partition, the rights and status of the parties stand decided and the partition
is deemed to have completed. At this stage, such decision is required to be treated as the “decree”.
(Para 30) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074 : 2023 INSC 373

Order 21 – Execution of Decrees and Orders

Code of Civil Procedure, 1908; Order XXI – 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. (Para 31) K.L. Suneja v. Manjeet Kaur
Monga, 2023 LiveLaw (SC) 68 : AIR 2023 SC 705 : 2023 INSC 89

Order 21 Rule 32 – Decree for specific performance for restitution of conjugal rights, or for an
injunction.

Code of Civil Procedure, 1908; Order XXI Rule 32 – It cannot be said that nonparticipation in a
proceeding of a restitution of conjugal rights is absolutely impactless. In fact, it has civil consequences
– Transfer petition filed by wife allowed. Poonam Anjur Pawar vs Ankur Ashokbhai Pawar, 2023
LiveLaw (SC) 579

Order 21 Rule 84 – Deposit by purchaser and re-sale on default

Code of Civil Procedure, 1908; Order XXI Rule 84, 85 – The deposit of 25% of the amount by the
purchaser other than the decree-holder is mandatory and the full amount of the purchase money
must be paid within fifteen days from the date of the sale – If the payment is not made within the
period of fifteen days, the Court has the discretion to forfeit the deposit, and there the discretion ends
but the obligation of the Court to resell the property is imperative – The provisions of the rules
requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared
as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon
noncompliance with these provisions there is no sale at all. The rules do not contemplate that there
can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the
first instance and the balance within 15 days. When there is no sale within the contemplation of these
rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the
price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. (Para
8-9) Gas Point Petroleum India Ltd. V. Rajendra Marothi, 2023 LiveLaw (SC) 89 : AIR 2023 SC 833 :
(2023) 3 SCC 629 : (2023) 2 SCR 326 : 2023 INSC 119

Order 21 Rules 97 – Resistance or obstruction to possession of immovable property

Code of Civil Procedure, 1908; Order XXI Rules 97 to 101 – Executing Court cannot dismiss an
execution petition against the judgment-debtor by treating the decree for possession as inexecutable,
merely on the basis that the decree-holder has lost possession of the immovable property to a third
party/encroacher. It was the duty of the Executing Court to issue warrant of possession for effecting
physical delivery of the suit land to the decree-holder. Further, if any resistance is offered by any
stranger/ encroacher to the decree, the same has to be adjudicated upon by the Executing Court in
accordance with Rules 97 to 101 of Order XXI CPC. Unless this procedure is adopted, the Executing
Court could not have closed the execution proceedings by observing that the decree is inexecutable.
(Para 15) Ved Kumari v. Municipal Corporation of Delhi, 2023 LiveLaw (SC) 712 : 2023 INSC 764 : AIR
2023 SC 4155

Order 21 Rule 102 – Rules not applicable to transferee pendente lite

Code of Civil Procedure, 1908; Order XXI Rule 102 – the Executing Court would have to determine
upon evidence whether the transfer of immovable property which was made post dismissal of suit,
was made after institution of appeal/further litigation or not, in order to attract the principle of lis
pendens. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567 : 2023 INSC 544

Order 22 Rule 2 – Procedure where one of several plaintiffs or defendants dies and right to sue
survives.

Code of Civil Procedure, 1908; Order XXII Rule 2 – Suit can’t be held to be abated in the event of death
of one of the defendants, when the estate/interest was being fully and substantially represented in
the suit jointly by the other defendants along with deceased defendant and when they are also his
legal representatives – In such cases, by reason of non-impleadment of all other legal heirs
consequential to the death of the said defendant, the defendants could not be heard to contend that
the suit should stand abated on account of non-substitution of all the other legal representatives of
the deceased defendant. (Para 36) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

Order 22 Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff.

Code of Civil Procedure, 1908; Order XXII Rule 3 – Advocate appearing for the Defendant could have
signed the compromise petition without an express consent. It is an imperative duty of the Court to
ascertain the genuineness and lawfulness of the compromise deed. (Para 100) Prasanta Kumar Sahoo
v. Charulata Sahu, 2023 LiveLaw (SC) 262 : 2023 INSC 319

Code of Civil Procedure, 1908; Order XXII Rule 3 – When a claim in suit has been adjusted wholly or in
part by any lawful agreement or compromise, the compromise must be in writing and signed by the
parties and there must be a completed agreement between them-. In a suit for partition of joint
property, a decree by consent amongst some only of the parties cannot be maintained. (Para 93, 94)
Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262 : 2023 INSC 319

Order 23 Rule 1 – Withdrawal of suit or abandonment of part of claim.

Code of Civil Procedure, 1908; Order 23 Rule 1 – A writ petition, filed pursuant to withdrawal of a civil
suit for the same relief when liberty is not granted to file afresh, is not maintainable. The principles of
constructive res judicata laid down in Order 23 Rule 1 CPC would also apply to writ proceedings. (Para
38) State of Orissa v. Laxmi Narayan Das, 2023 LiveLaw (SC) 527 : 2023 INSC 619 : AIR 2023 SC 3425

Order 26 Rule 10 – Procedure of Commissioner

Code of Civil Procedure, 1908; Order XXVI Rule 10 – Procedure of Commissioner – In terms of Order
XXVI Rule 10, the Commissioner has to submit a report in writing to the court. The report of the
Commissioner and the evidence taken by him constitute evidence in the suit and form a part of the
record. However, the court and, with its permission, any of the parties may examine the Commissioner
personally in open court touching any of the matters referred to him or mentioned in the report or as
regards the report including the manner in which the investigation has been made. The court is also
empowered to direct such further inquiry if it is dissatisfied with the proceedings of the Commissioner.
The evidentiary value of any report of the Commissioner is a matter to be tested in the suit and is
open to objections including cross-examination. A report of the Commissioner does not by and of
itself amount to a substantive finding on matters in dispute and is subject to the process of the court
during the course of the trial. (Para 14) Committee of Management Anjuman Intezemia Masajid
Varanasi v. Rakhi Singh, 2023 LiveLaw (SC) 634 : 2023 INSC 702

Order 41 Rule 5 – Stay by Appellate Court. Stay by Court which passed the decree.

Code of Civil Procedure, 1908; Order 41 Rule 5 – Unless the appeal is listed and there is an interim
order, the mere filing of the appeal would not operate as a stay. Sanjiv Kumar Singh v. State of Bihar,
2023 LiveLaw (SC) 63

Order 41 Rule 17 – Dismissal of appeal for appellant’s default

Civil Procedure Code, 1908; Order XLI Rule 17 – If the appellant does not appear when the appeal is
called for a hearing, then the same can be dismissed for non-prosecution and not on merits. Benny
Dsouza v. Melwin Dsouza, 2023 LiveLaw (SC) 1032

Order 41 Rule 22 – Upon hearing respondent may object to decree as if he had preferred a separate
appeal.

Code of Civil Procedure, 1908; Order XLI Rule 22 – In cases where the decree passed by the court of
first instance is in favor of the respondent in whole, in such circumstance, no remedy exists in favour
of the respondent to appeal such decree, since no right to appeal can be vested onto a party, which is
successful. However, in cases where the decree given by the court of first instance, is partly in favour
of the respondent, but is also partly against the respondent, two remedies within Order 41 Rule 22
remain with the respondent, which are (i) To file their cross objections and, (ii) To support the decree
in whole. A third remedy in law also exists, which is the right to file a cross appeal, which will also be
discussed in brief – In cases where the opposing party files a first appeal against part or whole of the
original decree, and the respondent in the said first appeal, due to part or whole of the decree being in
their favour, abstains from filing an appeal at the first instance, in such cases, to ensure that the
respondent is also given a fair chance to be heard, he is given the right to file his cross objections
within the appeal already so instituted by the other party, against not only the contentions raised by
the other party, but also against part or whole of the decree passed by the court of first instance – In a
similar circumstance, where the other party in the first instance has preferred an appeal, apart from
the remedy of cross objections, the respondent can also file a cross appeal within the limitation period
so prescribed, which in essence is a separate appeal in itself, challenging part or whole of the original
decree, independent of the appeal filed by the other party. The respondent also has the right to fully
support the original decree passed by the lower court in full. (Para 12-16) Dheeraj Singh v. Greater
Noida Industrial Development Authority, 2023 LiveLaw (SC) 493 : 2023 INSC 594

Code of Civil Procedure, 1908; Order XLI Rule 22 – While cross objections, unlike a regular appeal, are
filed within an already existing appeal, however, as per Order 41 Rule 22 of the CPC, cross objections
have all the trappings of a regular appeal, and therefore, must be considered in full by the court
adjudicating upon the same. (Para 17) Dheeraj Singh v. Greater Noida Industrial Development
Authority, 2023 LiveLaw (SC) 493 : 2023 INSC 594

Order 41 Rule 23 – Remand of case by Appellate Court.

Code of Civil Procedure, 1908; Order 41 Rule 23 – the scope of remand in terms of Rule 23 of Order XLI
CPC is extremely limited. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145 : 2023 INSC 173

Code of Civil Procedure, 1908; Order 41 Rule 23 – There can be no doubt with respect to the settled
position that the Court to which the case is remanded has to comply with the order of remand and
acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be
followed in its true spirit. (Para 7) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

Code of Civil Procedure, 1908; Order 41 Rule 23, 23A, 24 and 25 – Remand – An order of remand
prolongs and delays the litigation and hence, should not be passed unless the appellate court finds
that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for
reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real
trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party
complaining has suffered material prejudice on that account. Where evidence has already been
adduced and a decision can be rendered on appreciation of such evidence, an order of remand should
not be passed remitting the matter to the lower court, even if the lower court has omitted to frame
issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate
court, is essential. The first appellate court, if required, can also direct the trial court to record
evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be
taken on record for deciding the case by the appellate court. Arvind Kumar Jaiswal v. Devendra Prasad
Jaiswal Varun, 2023 LiveLaw (SC) 112
Order 41 Rule 23A – Remand in other cases

Code of Civil Procedure 1908; Order 41 Rule 23A – Necessary requirement for remand under Rule 23A
is that the decree is reversed in appeal and a re-trial is considered necessary – the reversal has to be
based on cogent reasons and for that matter, adverting to and dealing with the reasons that had
prevailed with the Trial Court remains a sine qua non. (Para 11.2) Sirajudheen v. Zeenath, 2023
LiveLaw (SC) 145 : 2023 INSC 173

Order 43 Rule 1 – Appeals from orders.

Code of Civil Procedure, 1908; Order XLIII Rule 1(d) and Section 115 – Appeal from orders and Revision
– When there is an express provision available under the CPC or any statute under which an appeal is
maintainable, by-passing the same, a Revision Petition cannot be filed. (Para 17) Koushik Mutually
Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

Order 47 Rule 1 – Application for review of judgment.

Code of Civil Procedure, 1908; Order 47 Rule 1 – Is the subsequent overruling of a precedent relied on
in a judgment a ground to review it ? – Supreme Court 2-judge bench delivers split verdict – Justice MR
Shah holds subsequent overruling is a ground to review – Justice BV Nagarathna disagrees. Govt. of
NCT of Delhi v. K.L. Rathi Steels Ltd; 2023 LiveLaw (SC) 204 : 2023 INSC 259

Code of Civil Procedure, 1908; Order XLVII Rule 1 – Scope of Review – Even a third party to the
proceedings, if he considers himself to be an “aggrieved person,” may take recourse to the remedy of
review petition. The quintessence is that the person should be aggrieved by the judgment and order
passed by the Court in some respect. (Para 7) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw
(SC) 939 : 2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; Order XLVII Rule 1 – Scope of Review – (i) A judgment is open to review
inter alia if there is a mistake or an error apparent on the face of the record. (ii) A judgment
pronounced by the Court is final, and departure from that principle is justified only when
circumstances of a substantial and compelling character make it necessary to do so. (iii) An error which
is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error
apparent on the face of record justifying the court to exercise its power of review. (iv) In exercise of
the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be
“reheard and corrected.” (v) A Review Petition has a limited purpose and cannot be allowed to be “an
appeal in disguise.” (vi) Under the guise of review, the petitioner cannot be permitted to reagitate and
reargue the questions which have already been addressed and decided. (vii) An error on the face of
record must be such an error which, mere looking at the record should strike and it should not require
any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision / judgment of a co-ordinate or larger Bench by
itself cannot be regarded as a ground for review. (Para 16) Sanjay Kumar Agarwal v. State Tax Officer,
2023 LiveLaw (SC) 939 : 2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; Order XLVII Rule 1 – Supreme Court Rules, 2013 – Scope of Review –
Any passing reference of the impugned judgment made by the Bench of the equal strength could not
be a ground for review. A co-ordinate Bench cannot comment upon the judgment rendered by another
co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co-ordinate
Bench or larger Bench by itself cannot be regarded as a ground for review. (Para 20, 24) Sanjay Kumar
Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : 2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; Order XLVII Rule 1, Rule 9 – The Supreme Court has upheld the decision
of the Jammu and Kashmir and Ladakh High Court where the court had held that where the assessee
had been held entitled to the refund of the Educational cess and Secondary & Higher Educational cess
on the basis of the judgment and order of the Supreme Court in M/s SRD Nutrients (P) Limited vs. CCE,
(2018) 1 SCC 105, which was applicable at the relevant time, the Revenue Department was not
entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the
Supreme Court in M/s Unicorn Industries vs. Union of India, (2020) 3 SCC 492, where the decision in
M/s SRD Nutrients was overruled by the top court. Commissioner of CGST and Central Excise (J&K) v.
Saraswati Agro Chemicals Pvt. Ltd., 2023 LiveLaw (SC) 522

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