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
Also Read - Four Conditions To Invoke Section 27 Of Indian Evidence Act :
Supreme Court Explains
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
Also Read - Supreme Court Asks State To Pay Salaries To Teachers Appointed
Over Sanctioned Posts; Says They Weren't At Fault
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
Also Read - Supreme Court Annual Digest 2023-Code Of Criminal Procedure
(CrPC)
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
Also Read - 'Custody' Under S.27 Evidence Act Doesn't Mean Custody After
Formal Arrest; Includes Any Kind Of Restraint Or Surveillance: Supreme Court
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