Probate Jurisdiction - Confusion

Probate - Jurisdiction - Confusion......!

- As per Section 264 of Indian Succession Act 1925 District Judge having jurisdiction of Probate.

- But as per Section 265 the High Court may delegate above power to Civil Judge.

- As per para 305 of Civil Mannual (CHAPTER XIV i. e. 14) High Court delegate power of District Judges to Civil Judges in respect of Probate as per section 265 of Indian Succession Act.

- So Civil Judges having power in respect of Probate as  per above provisions.

= Kindly go through or peruse carefully above provisions.

...

.

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Indian Soldier/Family Court Fee

..... Indian Soldier/Family - Court Fee

- Basically every party/person is required to pay court fee in civil suit.

                               

- But the state government may from time to time by notification in the official gazette reduce or remite the court fee.

- The Government of Maharashtra by notification remits in the whole of the State of Maharashtra the fees payable as per Schedule I & II annexed to Maharashtra Court Fees Act 1959 by a retired honourably discharged Indiana Soldier or a member of his family. (G. N. R. & F. D., NO. CTF. 1072/17365-N, DATED 11 NOVEMBER 1974)(M. G., PT. IV-B,P. 228).

- Indian Soldier means any person subject to the Army Act 1950 or Air Force Act 1960 or Navy Act 1957 who domiciled in the State of Maharashtra.

- Member of a Family means a wife, child, father, mother, minor brother or unmarried or widowed sister, wholly dependant on an Indian Soldier.

== Relevant Provision ===

- Section 46 of Maharashtra Court Fees Act 1959.

- Notification under above section.

- Schedule I & II annexed to above Act.

=== Relevant Judgement =

- Padmanabh A. Panditrao LT Col (Retd) v/s A Panditrao 2013(3)M. L. J. 468.

- Indian Soldier and Business v/s Shrikrishna Ananta - Writ Petition 206/2013 decided on 08-02-2013 - Bench R. M. Sawant Bombay H. C.

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REFUND OF COURT-FEE

..... Refund of Court- Fee.....

                               

- When any suit/appeal /cross-objection in a Court is settled by agreement of parties before any evidence the amount of court fee paid by plaintiff/appellant/respondant on suit/appeal/cross objection as the case may be shall repaid to him by the court as per notification of Government.

- Basically maximum 3/4 amount of court fee be repaid as per notification of Government.

- But where the court refers the parties to the suit to any mode of settlement of dispute referred to in section 89 of C. P. C. the plaintiff shall be entitled to certificate from the court authorising him to receive back from the collector the Full Amount of the Fee paid in respect of such plaint.

- Please carefully peruse section 89 of C. P. C. for refund of Court Fee.

== Relevant Provisions ===

- Section 43 of Maharashtra Court Fees Act 1959.

- Notification of Government issued u/s 43(2) of above Act.

- Section 89 of C. P. C.

- Chapter VI(6) of C. P. C. (Amendment) 1999 i. e. Amendment Of The Court Fees Act 1870.

- Section 21 of The Legal Services Authorities Act 1987.

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Limitation Issue - Absence of Pleading

- Absence of Pleading of Limitation...... Effect....!

                                  

                               

- Limitation of suits , appeals and applications are provided in The Limitation Act 1963.

- Basically every suit instituted , appeal preferred , and application be made within prescribed period.

- If any suit , appeal , application is filed after prescribed period shall be dismissed ALTHOUGH LIMITATION has not been set up as a DEFENCE .

- Question of Limitation involves a question of very root of the court's jurisdiction of the court .

 

- Point of limitation though not raised before lower court it can raised in appeal or EVEN in Court of Last RESORT.

- Question of limitation is a mandate for Court , Forum irrespective of fact whether it is raised or not as defence in Pleading.

= = Relevant Provision = =

- Section 3 to 24 of The Limitation Act 1963 .

= Relevant Judgement = = =

- Kamlesh Babu & Ors v/s Lajpat Rai Sharma & Ors A.I.R.2008 S.C.(Supp) 1931 = 2008 SAR 542.

- Foreshore Co-operative Housing Society Ltd v/s Praveen D. Desai (D) through LRS and others A.I.R.2015 S.C.2006 = 2015 SAR 789.

- State of Gujarat v/s Kothari and Associates 2016 All.SCR 857 .

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Co Defendant - Cross - Examination Order

Co - defendant & Cross - Cross - Examination.....!

                             

- Basically defendant who support the plaintiff is not entitled to cross examination of the plaintiff unless he shows that evidence of plaintiff would adversely affect his interest.

- If co defendant is permitted to take cross examination of plaintiff then he shall be called upon  to cross examination before cross - examination by Defendant contesting the suit.

= Relevant Provision =

- Section 137/138 of Indian Evidence Act.

- Order 18 of C. P. C.

== Relevant Judgement ==

- Mandabai R. Tumsare v/s Ramlal H. Hiwarkar 1986 M. L. J. 643.

- Vinod K. Lodaya v/s Muljibhai Patel 2013(5) M. L. J. 371=2013(6) All. M. R. 732.

- Pritabai S. Shetgaonkar v/s Ramachandra N. Saradesai 2014(7) All. M. R. 761.

- Syhesta Olievera @ Bhat v/s Dilip Shetye 2016(2) All. M. R. 710

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Prima Facie Case In civil Dispute

- Prima Facie Case.........! 

                                 

- Basically no where defined prima facie case  in C.P.C. or in the Specific Relief Act. It is a latin word means first sight.

- But prima facie case means a case in which a serious question is involved and the same be required investigation i.e. it be tried at the hearing of the suit and probability tielt in his favour for the relief sought.

- Prima facie case does not mean prima facie success but simply means that there is serious question to be tried.

- In other word prima facie case means case in which bonafide contest between parties in which serious question is required to be tried.

 - = Relevant Provision = -

- Order 39 of C.P.C.

= = Relevant Judgement ==

- 1979 M.L.J.514.

- A.I.R.1992 ALL 254.

- A.I.R 1993 S.C. 276/976.

-1996(1) Bomb. C.J.640.

- 2001(3) M.L.R.585.

- 2005(1) M.L.J.987.

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Pecuniary-Jurisdiction-Civil-Court

 Pecuniary Jurisdiction - Civil-Court.

                             

- Basically the District Court shall be the principle court of original civil jurisdiction in the district, within the meaning of the C.P.C.

- The jurisdiction of the Civil Judge Junior Division extends to all suits and proceedings of a civil nature wherein the Subject-Matter does not exceed it's amount or value 5 lakh rupees.

- The jurisdiction of a Civil Judge Senior Division extends to all original suits and proceedings of a civil nature .( It means no pecuniary limit )

- But any suit against crown,any officer of the Government in his official capacity is party shall be presented , filed before Civil Judge Senior Division.

- In all civil suits decided by a Civil Judge of which the amount or value of subject-matter exceeds 1(One) Crore the appeal from his decision shall be to the High Court .( It means up to 1 Crore appeal lies to District Court).

== Relevant Provision= 

- Section 6 of C.P.C.

- Section 7 , 16 , 24 , 32 of The Maharashtra (Bombay) Civil Courts Act 1869.

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Indian Soldier Court Fee......!

Indian Soldier & Court Fee....!

                               

- Basically court fees in civil dispute levied as per Maharashtra (Bombay) Court Fees Act 1959.

- But as per provision of the above act the State Government from time to time by notification in official Gazette reduce or remite Court fees mentioned in  First and Second Schedule of the act.

- The Government of Maharashtra remite in the whole of the State of Maharashtra the court-fees payable in respect of any of documents of any of the kinds specified in the Schedule 1 & 2 annexed to the said act which are to be filled, exhibited or recorded in any Civil or Criminal Court by retired honourable discharged Indian Soldier or a member of his family.

- Indian Soldier means any person subject to the Army Act 1950,Air Force Act 1960,Navy Act 1957 , who is domiciled in the State of Maharashtra.

- Member of a family means a wife, child, father, mother, minor brother,or unmarried or windowed sister, wholly dependant on an Indian Soldier.

= Relevant Provision ==

- Section 46 of  The Maharashtra (Bombay) Court Fees Act 1959.

- Schedule 1 & 2 annexed to the said Act

- G.N.,R.&F.D.,NO.CTF.1771/8395-M-1,DATED 2 MARCH 1977.(M.G.,PT,IV-B,P.228)

== Relevant Judgement=

- Padamanab A. Panditrao LT Col (Retd) v/s Shrikrishna A. Panditarao 2013(3) M.L.J.468.

- Indian Soldier and Business v/s Shri Shrikrishna Ananta - Decided on 08-02-2013 by Bench R.M.Sawant - Writ Petition No.206/2013.

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Amendment - Applications-In - Suit/Application

Amendment Of Pleading - - Applications........!

                            

- All applications for amendment of pleading under Rule 17 of Order 6 of C.P.C.1908 , shall be Signed & Verified as required under Rule 14 and 15 of Rule 6 of C.P.C.,1908.

- All amendments shall be made as may be necessary for the purposes of determing the real questions in controversy between the parties.

- If leave to amend is grated be amend within the time limited for it by Court or if no  time is provided then within 14 days from the date of order.

- If defendant or opponent has not appeared through served with summons/notice & where in the opinion of the Court the amendment applied is material one , the court shall give notice of the application to the dependant/opponent before allowing the amendment.

== Relevant Provision=

- Section 141 of C.P.C.

- Order 6 Rule 14 & 15 of C.P.C.

- Order 6 Rule 17 & 18 of C.P.C.

- Chapter 5(V) of Civil Mannual Para 79.

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Other-Than -Subject-Matter .........Compromise - Decree

   Compromise - Decree - Other than Subject-Matter.....!

                             

- Basically by lawful agreement or compromise wholly or partly suit be adjusted and court may pass compromise decree wholly or partly.

- The lawful agreement or compromise be in writing and signed by parties to suit.

- In fact there is no bar / restrictio that lawful compromise be other than subject matter it means compromise may include other property which is not subject matter of the suit.

- In case of minor parties to suit without leave of court no guardian or next friend shall enter into any agreement or compromise .

- Also in case of minor the certificate of pleader (advocate) explaining that the agreement or compromise proposed is in his opinion for benefit of the minor is required.

- If any agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.

== Relevant Provision =

- Order 23 of C.P.C.

- Order 32 of C.P.C.

== Judgements =

- Star Construction and Transport Co.and others v/s The India Cements Ltd. A.I.R.2001 S.C.941=2001(1)Non.C.J.845=(2001)3SCC 351.

- Mathulla Verghese v/s Vijaya Rajaratnam 2001(1)All.M.R.373=2001(3) Bom C.R.205.

- Indrayani Foods Ltd v/s Pam-Pac Machines Pvt.Ltd.Mumbai 2012 (1) Mh.L.J.741.

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Additional Evidence in Appeal

     Additional Evidence In Appeal.......!

- Basically parties to suit shall produce all evidence before trial court.

                              

- But in following circumstances the parties to an appeal may be permitted to produce additional evidence whether oral or documentary in appeal .

- Where trial court had refused to admit the evidence which ought to have been admitted.

-The evidence was not available to the party despite exercise of due diligence.

- The appellate court required additional evidence which is relevant and material for deciding the rights of the parties which are subject matter of the lis .

- Also such evidence really essential for pronouncement of judgement.

- Merely because the court allowed one party to file additional evidence in appeal would not mean that court has decided entire appeal in his favour but court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.

- Application in an appeal for additional evidence may be considered at the time of final hearing of appeal on merits.

= Relevant Provision == 

- Order 41 Rule 27 of C.P.C.

- Order 13 of C.P.C.

= = Judgements =

- Sunil Kumar Maity v/s State Bank of India and And. 2022 S.A.R.460.

 

- Jagdish Prasad Patel (Dead) The.Lrs. & Anr v/s Shivnath & Ors 2019 S.A.R.765.

- Union of India v/s Ibrahim Uddin & Anr 2012 S.A.R.684.

- Union of India v/s K.V.Lakshman 2016 S.A.R.821.

- Harjas Raj Makhija (D) through Lrs v/s Pushparani Jain & Anr 2017 S.A.R.156.

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Death of Complainant in N.I.Act 138 Complaint

   Death of Complaint in Complaint u/s 138 of N.I.Act 1881..... Whether it Abate or Heirs of Complainant proceed it ....?

                                 

- Basically complaint u/s 138 of Negotiable Instruments Act 1881 proceed as per procedure provided in Code Of Criminal Procedure 1973.

- Once magistrate take cognizance of offence u/s 138 of N.I.Act the death of complainant does not affect further trial of complaint.

- Also there is no provision in Cr.P.C. or in the N.I.Act that on account of death of the complainant the trial must abate.

- But after death of complainant the legal heirs of the complainant are entitled to come forward and ask for their substitution in the complaint so as to proceed further with the trial with the permission of the magistrate.

- Even though after death of the original  complainant after filing of an appeal against acquittal or conviction the legal heirs of complainant may with permission of the court proceed an appeal further.

= = Relevant Provision ==

- Section 138 to 148 of N.I.Act 1881.

- Section 256 of Cr.P.C.1973.

= Judgements ===

- Helen C.Pinheiro And Ors v/s Kamaxi Steel Products 2000 Cr.L.J.1622.

- Yogeshkumar Keshavlal Kamdar v/s Jamanadas Bhagwandas Vakharia Gujarat H.C. decided on 31-03-2022 (R/CR.A/1585/2006).

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Encroachment - Collector - Tahasildar - Summary Eviction - Section 138 M.L.R.C. 1966

Encroachment - Collector - Tahasildar To Whom Have Power Summarily Evict....?

                                

- As per provisions of  Maharashtra Land Revenue Code 1966 boundaries of field be settled.

- After settlement of boundaries of field who is  wrongfully in  possession of any land i.e. Encroached  may be at any time summarily evicted by Collector.

- As per Section 138(2) of M.L.R.C.1966 only Collector have power to evict summarily no other Officer i.e. S.D.O.(Sub Divisional Officer), Tahasildar have power to summarily evict as per the said provision.

- Now in today all over Maharashtra State application under Section 138(2) of M.L.R.C.1966 is decided by Tahasildar or S.D.O which is void, without jurisdiction, ultra vires which causes harm to society . Due to which litigants spend their time, money which is injustice to them.

- Basically as per Section 13 & 330A of M.L.R.C.1966 NOTIFICATION ( in official gazette)  & APPROVAL of State Government is required for delegation of Powers by Collector to their sub ordinate officer .

- But till today no such Notification, Approval is in the State of Maharashtra even though application under 138(2) of M.L.C.1966 are entertained and decided by sub ordinate officer of Collector which is routine practice in Maharashtra State the same is illegal void ab intio.

- So all applications under section 138(2) of M.L.R.C.1966 be file before Collector .

= Relevant Provision =

- Section 138, 13 , 330A Of M.L.R.C.1966.

- Notifications under Section 13 of M.L.R.C.1966 - G.N.R.& F.D.No.UNF.1467-(e)-R dated 14 August, 1967 in which section 138 is not mentioned.

____________________________________________________________________________________

== सर्व वकिल बंधु , भगिनी यांना गुढीपाडवा , नवं वर्षाच्या हार्दिक शुभेच्छा . तसेच मुख्यत्वे सातारा जिल्ह्यातील वकिलांना विनंती कि महाराष्ट्र महसूल अधिनियम १९६६ चे कलम १३८(२) प्रमाणेचे (BND) अर्ज जिल्हाधिकारी ,सातारा येथे दाखल करावेत व पक्षकाराचा वेळ, पैसा याचा अपव्यय टाळावा .

____________________________________________________________________________________

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Suit against Nagar palika & Notice u/s 304...

Suit against Nagar parishad..... Notice u/s 304 when required.....?

                              

- Basically no suit lie against municipal council, nagarpanchayat or against any committee constituted under The Maharashtra Municipal Councils, Nagar Panchayat And Industrial Townships Act,1965, or against any offers or servent of a Council in respect of any act done in pursuance or executing or intended execution of the above act or in respect of any alleged neglect or default in the execution of this act unless notice u/s 304 is served.

- But suit shall be filed within 6 month from the date of accrual of the cause of action after serving 1 month notice.

- While filing suit against Municipal Council, Nagarapanchayat , It's committee,servant, officer we shall take into consideration basically whether "act "of them is in pursuance of Municipal Act (The M.M.C.N.P.& IT.Act 1965).

- If act of them is illegal, against provisions of municipal law or ultra vires then no notice u/s 304 is required for filing suit .

- Also as per Section 304(4) no notice is required if  suit is filed under Section 38 of The Specific Relief Act 1963 (i.e. Suit for perpetual injunction). 

- Nor format of above notice but it shall contain cause of action,name place of abode of intending plaintiff, claim of relief intending.

- Also waiving or dispense with  above notice or it's period is no where provided in the act in fact it's mandatory notice . Municipal / Nagarpanchayat Council is a Local body not a Government so Section 80(2) of C.P.C. 1908 (i.e. waiver or dispense with notice in case of urgency) . Please peruse Section 32(3) of The Maharashtra (Bombay) Civil Courts Act 1869.

== Relevant Provision ==

- Section 304 Of Municipal Act 1965 .

- Section 80 of C.P.C.

- Section 32 of The Maharashtra (Bombay) Civil Court Act 1868.

 = Relevant Judgement==

- Ratnagiri Municipal Council v/s J.S.Khanna & Co. 1987 M.L.J.166.

- Municipal Council Amravati v/s Shriram Shaligram Malviya 1993(3) M.L.J.484.

- Bajaja Tempo Limited v/s Pimpri Chinchwad New Township Municipal Council 1986(2) Bom.CR 321.

- Municipal Council Khurat v/s Komal Kumar A.I.R.1965 S.C.1321.

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Transferee & Execution Application

Transfferee - may apply  for Execution of Decree....

                                  

- Basically parties to decree have right to file execution application.

- But if decree is transferred by assignment , the transfree may file execution application.

- No  particular  format of assignment necessary to prove assignment of decree.

- Even though trasferee of the  right in property which is subject matter of suit may apply for execution of decree without separate assignment of the decree.

- It is not necessary that transferree shall be parties in the suit.

- The question of  validity of assignment is to be decided by executing court and not by separate suit.

- If execution application is filed by tranferee then transferor and judgement debtor be heard by execution court.

= Relevant Provision =

- Section 2(1)(g), 47,146.

- Order 21 Rule 16 of C.P.C.

== Relevant Judgement =

- Vishnuprasad v/s Ganpat 1983 M.L.J.133

- Devilal Asaramji Pande v/s Madhukar P. Ishwarkar 1993 Bom.CJ 569.

- Vaishno Devi Construction Rep. Thr. Sole Proprietor (D) Thr Lrs & Anr v/s Union Of India & Ors 2022 SAR 133.

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Limitation Issue in Civil Suit

Limitation issue in Civil Suit......

                                 

- Basically every civil suit shall be instituted within prescribed period of limitation.

            

- Civil suit instituted after prescribed period of limitation shall be dismissed although Limitation has not been set up as a Defence.

- Means no pleading is necessary in the written statement in respect of limitation of suit as per above legal aspect.

- It means it issue limitation of can be raised at the time of final argument in suit or appeal.

- Lastly but important aspect except provided in Section 12 to 15 of The Limitation Act 1963 prescribed period of limitation for suit  shall not be extended .

= Relevant Provision = 

- Section 3, 12 to 15 of The Limitation Act.

== Relevant Judgement ==

- Foreshore Co-operative Housing Society Ltd v/s Praveen D. Desai (D) though LRS and others A.I.R.2015 S.C 2006 = 2015 SAR 789.

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Joint possession - Decree

Joint possession - Decree.....

                             ,

- Basically decree is nothing but formal expression of an adjudication , determines the rights of the parties with regard to all or any of the matters .

- Decree may be either preliminary or final.

- Decree be include the rejection of a plaint.

- Decree be include the determination of any question within section 144 .

- Civil court may pass decree of joint possession as well as symbolic possession in respect of suit property.

- In fact no where in the C.P.C. bars civil court to pass joint possession decree in suit.

- Even though as per Order 21 Rule 35(2) of C.P.C. joint possession decree of immovable property shall be executed.

= Relevant Provision =

- Section 2(2 ), 0rder 21 Rule 35 , Order 20 of C.P.C.

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Production Of Documents - Evidence- In Civil Suit

Production of documents in civil suit....

                                

- Basically parties to suit shall produce on or before the settlement of issues all the original documentary evidence in the suit .

- Above rule shall not apply to documents produced for the cross examination of the witness of the other party or handed over to a witness merely to refresh his memory.

- But if evidence Oral or Documentary which will assist the court in rendering justice then court may at any stage allow such evidence.

- After argument of both parties but before delivery of judgement patties to the suit may adduce Oral as well as Documentary evidence in the suit.

- The court is to consider the value of oral or documentary evidence in rendering justice.

== Relevant Provision =

- Order 13 and 18 of C.P.C.

= Relevant Judgement =

- Mukund Iron Staff Association Co-Op.Housing Society Ltd., Bombay v/s Vasant Ramchandra Patil 2015(4) M.L.J.855.

- Hemant Harish Thakkar v/s Balkrishna Appaya Shetty 2001(3) All.M.R.689.

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Mortgage - Redemption - Ingredients

 - Mortgage - Redemption... Requirement....!

- Basically mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt , or the performance of an engagement which may give rise to a pecuniary liability.

- Also the transaction shall be mortgage if condition of redemption or re - purchase is embodied in the same document. Even though document titled as conditional sale or right of repurchase shall be exercised within stipulated period , if not exercised within stipulated period it become absolute sale.

- The relationship of debtor and crediror shall be established.

- The intention of the parties to document has to be seen when document is executed.

- If condition of redemption or re - purchase is embodied in different or separate document question of mortgage does not arise even though all other conditions of mortgage are fulfilled.

- Right of redemption of mortgage is to be exercised within 30 yenar . If if document contains some period ( like 2, 5, 10, 20,.... years ) then right of redemption begins after expiry of that period means additional period of redemption will gate to mortgagor.

- Relevant Provision - 

- Section 58(C) of The Transfer of Property Act 1882.

- Article 61 of The Limitation Act 1963.

== Relevant Latest Judgement===

- Bhimrao Ramchandra Kalate v/s Nana Dinkar Yadav 2021 SAR 924 ... Decided on 13 August 202 in numbers of S.C. judgements are referred.

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Suit Stamp Duty - Ready-Reckoner Rate

Suit - Valuation - Ready Reckoner- Suit Stamp Duty.....

                                  

                                    

- Basically Suit Valuation Act 1887 & Maharashtra (Bombay) Court Fee Act 1959 be peruse for suit valuation and suit stamp duty for every type of suit.

- For calculating market value of suit property property the procedure is provided in the Maharashtra Court Fee  Act if dispute arise before court in the suit.

- Market value for the Indian Stamp Act 1899 or Maharashtra (Bombay) Stamp Act 1958 determined as Ready Reckoner for purpose of assessment of stamp duty for Registration of instrument .

- Ready Reckoner value of Property is not the same as suit valuation for the purpose of Jurisdiction & Court-Fee in suit before court.

- Suit Valuation Act & Stamp Act operate in different fields but many people confuses while calculating Suit Valuation & Court Fee .

= Relevant Law==

- Indian Stamp Act 1899.

- Suit Valuation Act 1887.

- Maharashtra (Bombay) Court Fee Act 1959.

==Relevant Judgement=

- Add.Distt.Sub-Registrar Siliguri v/s Pawan Kumar Verma & Ors 2013 SAR 569=A.I.R 2013 S.C.1886.

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Pre emption - Mohammedan Law

Pre-Emption right under Mohammedan Law.....

                             

- The right of pre-emption is customary under Mohammed Law.

- It is a right to acquire by compulsory purchase of property.

- Basic concept is to obviate in convenience or disturbances which would arise by conjunction of stranger.

- Also to preserve the integrity of the village and community, to avoid fragmentation, to reduce chances of litigation is concept of eight of pre emotion.

- Right of pre - emotion arises only in case of sale.

- It's not applicable to leased, gift, waqf, inheritance, bequest property.

- It be claimed by co - sharer in the property sold.

- It be claimed by person who is participating in the immunities and appendages in the property, such as a right of way or discharge of water.

- It be claimed by the adjoining owner of immovable property.

== Relevant Provision =

- Provision of Pre - Emption under Mohammedan Law.

== Relevant Judgement =

- Raghunath v/s Radha Mohan 2021 SAR 26.

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Questions of Limitation & O.7.R.11

Limitation & Order 7 Rule 11 of C.P.C.

                                  

- Basically averments in the plaint are to be looked into while deciding an application.

- Also question of limitation is a triable issue and it can be decided only after taking evidence.

- Issue  of limitation for filing of suit being a mixed question of facts and law .

- So issue of limitation can not be decided under order 7 rule 10 of C.P.C. and plaint cannot be be rejected under it.

- Plaint could be rejected under above order on the basis of averments in the plaint . The pleas defence taken by the defendant in written statement would be wholly irrelevant .

= Relevant Provision = =

- Order 7 Rule 11 of C.P.C.

= = Relevant Judgement =

- Chotaben and another v/s Kirtibhai J. Thakkar 2018 SAR 587= 2019(2) M.L.J.17

- Urvashiben & And v/s Krishnakant M. Trivedi 2019 SAR 241.

- M/S Shakti Bhog Food Industries Ltd v/s The Central Bank of India & And 2020 SAR 924.

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Counter-Claim against Co-Defendant.....?

Counter - Claim against Co - defendant....!

                                 

- Basically counter claim may be filed against plaintiff if any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.

- Counter claim may be filed in respect of any relief.

- It be filed along with written statement or after filing of it with permission of court.

- It be filed against plaintiff but in which relief can be claimed against co defendant along with plaintiff.

- Counter claim solely against co defendant is not maintainable in the eyes of law.

== Relevant Provision ==

-Order 8 Rule 6A of C.P.C.

= Relevant Judgement =

- Rohit Singh & Ors v/s State of Bihar A.I.R.2007 S.C.10= 2006 SAR 85.

- Communidade of Pirla v/s Government of Goa 2010(6) M.L.J.433.

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Arbitration - Award - interim measures....

Arbitration - Award - Interim measures........... !

                             

       

                                  

- For arbitration basically clause of arbitration required in the agreement between the parties.

- Arbitration agreement means patties to agreement to submit all or certain disputes between them to arbitration.

- Arbitration agreement shall be in writing , signed by parties.

- An exchange of letter , telex , telegram , telecommunication , statements , claim defence in which existence of agreement alleged by one party and not denied by other is an arbitration agreement.

- Civil court have no jurisdiction in respect of arbitration agreement but refer dispute to arbitration.

- A party to arbitration agreement may before or during arbitral proceeding or at any time after the making of the arbitral award but before it's enforcement according to section 36 may apply to a court for interim measures like appointment of guardian , preservation , interim custody ,  sale  of subject matter , securing amount, detention, preservation, inspection of subject matter, interim injunction , appointment of receiver, other interim measure of protection which are just , convenient.

- The parties to arbitration agreement may appoint arbitrator as per agreement.

- If parties to agreement fails to appoint arbitrator as per agreement then chief justice of India , different high courts , designated judges of high or supreme court have jurisdiction to appoint arbitrator.

- Arbitration award may challenged by filing application for setting aside before district court within 3 months.

- But after above 3 months within further 30 days application for setting aside award may be entertained if sufficient cause is shown but not thereafter.

= Relevant Provision = =

- Section 1 to 36 of The Arbitration and Conciliation Act 1996.

=== Relevant Judgement =

-Dakshin Haryana Bijili Vitran Nigam Ltd. v/s M/S Navigant Technologies Pvt. Ltd. 2021 SAR 369.

- Greaves Cotton Ltd v. United Machinery and appliance 2017 SAR 183.

- Mrs Hema v. Shiv Khera 2017 SAR 627.

- Suresh Dhanuka v. Sunita Mohapatra 2012 SAR 119.

- Yograj Infras v. SSAMG Yong Eng & Construction Co. Ltd 2012 SAR 200.

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Amendment - Judgements/Decrees/Orders - Limitation

- Amendment - Judgements, Decrees, Orders.. 

                                 

- The court either of its own motion or on the the application of any parties may amend clerical or arithmetical mistake in judgements , decrees or orders or errors arising therein from any accidental slip or omission at any time be corrected.

- Above power of amendment or rectification or correction may be exercise at any time by court.

- But the court may exercise above power within reasonable time.

- The above power of court may be exercised in respect of compromise decree also.

- The court has no power to correct omission which goes to merit of the case.

- The court has no power to modify or set aside any judgement, decree or order as per above provision.

- In fact the period of limitation is not prescribed in C.P.C. for amendment of judgements, decrees or orders by court as per above power.

= = Relevant Provision ===

- Section 152 of C.P.C.

- section 29 of The Limitation Act 1963.

== Relevant Judgement ==

-State  or Maharashtra v/s Shyamkant Dattatraya Patil 2006(3) M.L.J.577.

Jaylaxmi Narayan v/s Oswald Coelho and another A.I.R 2001 S.C.1084=2001(3) M.L.J.498.

- Latabai N.Telang v/s Suresh N.Telang 2006(1) M.L.J.440.

- Peethai Suryanarayana v/s Repaka V. R.Kishore A.I.R.2009 S.C.2141.

- Srihari v/s Sayed Maqdoom Shah 2015(3) M.L.J.582(S.C.).

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Civil M.A. - procedure/provision applicability

 - Civil Miscellaneous Application - - - - - Procedure - Applicability of Provision

                                     

                          

- Basically if we peruse all Orders of The Code Of Civil Procedure 1908 we find that those are provided for suit or applicable to the suit.

- For example if we peruse Order 1,2, 4 , 9, 10, 11, 13, 14,16, 23, 26 to 34, 38, 39, 40 of The Code Of Civil Procedure 1908 those shows that all are applicable to suit.

- In fact the procedure provided in the The Civil Procedure Code 1908 in regard to suit shall be followed, as per as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

- So in Civil Miscellaneous (Civil M.A.) party to it may  claim relief like Temporary Injunction, Court Commission, Amendment, etc which may be claimed in Civil Suit.

- In fact civil court have same jurisdiction in respect of civil miscellaneous proceeding like civil suit.

= = Relevant Provision = ==

- Section 141 of The Code Of Civil Procedure 1908.

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Continues Limitation to Suit

- Continues - Limitation - To Suit.......?

                                     

- Basically ever suit shall be filed within limitation as provided in law.

- But in the some cases  of Continuing Breach of Contract or in the case of a Continuing Tort , a fresh period of Limitation Begins to Run at every moment of the time during which the Beach or the Tort , as the case may be Continues.

- For example  suit in respect of Encroachment on Public Street - cause of action continues as long as such wrong and injury continues.

- Suit for eviction of Trespasser in such suit trespass continues so long as until title of the owner hostile.

- In suit of breach of contract non performance of obligation by party to contract can not be said to be continuing Breach.

== Relevant Provision==

- Section 22 of The Limitation Act 1963.

= Relevant Judgement==

- Vinay Ambadas Kaikini v/s Court Receiver , High Court of Judicature At Bombay 2010(6) M.L.J.407.

- Hari Ram v/s Jyoti Prasad AI.R. 2011 S.C.952 = 2011(2) ALL.M.R.457(S.C.).

- Anna Parisa Chougule v/s Sulochana Nabhiraj Chougule 2017(6)M.L.J.693. = 2017(5) ALL.M.R.525.

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Third - Party- Application.....

....  Third Party Application.......!

                                    

- Basically third party application by necessary or proper party is maintainable in any proceeding.

- The court can at any stage of the proceeding either on the application made by the parties or otherwise direct impleadment of any person as party who ought to have been joined as plaintiff or defendant or whose presence is necessary for effective and complete adjudication of the issues involved in the suit.

- A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

- A proper party is a person whose presence would enable the court to completely effective and properly adjudicate upon all matters and issues though he may not be a person in favour or against whom a decree is to be made.

- If a person is not found to be a proper or necessary party the court does not have jurisdiction to order his impleadment against the wishes of the plaintiff.

=== Relevant Provision ==

- Order 1 Rule 10 of C.P.C.

____ Relevant Judgement ____

- Shri V.J.Thomas v/s Shri Pathrose Abraham & Ora A.I.R 2008 S.C.1503.

- Kasturi v/s Iyyamperumal and Ors A.I.R.2005 S.C.2813.

- Vidur Impex and Traders Pvt. Ltd. V/s Tosh Apartments Pvt. Ltd. A.I.R.2012 S.C.2925.

- Richard Lee v/s Girish Soni and Anr A.I.R.2017 S.C.921.

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Transposition - Defendant as Plaintiff

... Transposition..... Civil - Suit 

                               

         

- In civil suit defendant may apply application for transposition of him as Plaintiff. 

                                   

- Basically where a suit is withdrawn or abandoned by a plaintiff and a defendant applies to be transposed as a plaintiff,  the court shall in considering such application a substantial question to be decided as against any of other defendants. 

- Provision of transposition is made only to avoid another suit. 

- Transposition facility is given basically to a pro forma defendant who has identical interest with plaintiff. 

= = Relevant Provision = = =

- Order 23 Rule 1A of Civil Procedure Code 1908.

- -  - Relevant Judgement  - - - -

- K. K. Modi v/s K. N. Modi and Ors. etc. 1998 SAR 254 = 1998(3) SCC 573.

- kashibai Waman Patil v/s Taukir Ahmed Mohamed Hanif Khan 2015(6) All. M.R.340 = 2015(3) Bom. C. R. 466.

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Witness Examination Before Hearing

- Examination of Witness before Hearing and Party appear as Witness after other witness....

                         

                                  

- Basically evidence of witness or party may be recorded after framing of issues.

- But if party to suit ( plaintiff or defendant ) shows sufficient cause or a witness is about to leave the jurisdiction of the court, the court may upon the application of any party allow to record evidence of witness at any time after institution of the Suit.

- - - - Also basically party to suit himself appear as witness before other witness on his behalf.

- But with permission of the court party may appear as witness after other witness on his behalf.

------ Relevant Provision ---------

- Order 18 Rule 16 & Rule 3A of C.P.C.

= = Relevant Judgement = ==

- Vijaysingh Godhandas v/s Dwarkadas Mulji 2001(4)M.L.J.735.

- Humberto v/s Floriano 2000(1) M.LJ.690.

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... Caveat

....................... CAVEAT.....................

                                      

- Caveat is a caution or warning given by a person to the court that the court should not pass any   ex-parte order  before giving prior notice or without hearing the person who can be called caveator.

- When a caveat has been lodged, the person by whom the caveat has been lodged shall serve a notice of the caveat by Registered Post,

- Where a caveat has been lodged any interim application is filed in any suit or proceeding the court shall serve a notice of application on caveator.

- A caveat shall remain in force till 90 days from the date on which it was lodged..

- Every caveat shall be signed by the caveator or his advocate and shall be in the From prescribed.

- Where caveator is represented by an Advocate his vakalatnama shall accompany the Caveat.

- If anAdvocate instructed by party may file caveat without vakalatnama and give undertaking to file vakalatnama within a week in prescribed form duly signed by the party.

- A notice U/S 148A of C.P.C.(i.e.notice of interim application ) may be served on the Caveator or His Advocate personally or by post.The notice send by post at the address furnished by caveator shall be deemed to sufficient service on him.

- Where it appears to the court that object of granting Ad - Interim relief on the application would be defeated by delay, it may record reasons for such opinion and grant Ad - Interim relief on the application of applicant till further order after giving the Caveator an opportunity of being heard.

= = Relevant Provision = = =

- Section 148A and Order 40A (XL-A) i.e.Bombay High Court Amendment of C.P.C.

= Relevant Judgement = =

- Mahadev Govind Gharge v/s Special Land Acquisition Officer A.I.R.2011 S.C.2439 = 2011(5) M.L.J.(S.C.)532  = 2011(4) All.M.R.858(S.C.)

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Absence of Pleading of Limitation - Effect

- Absence of Pleading of Limitation...... Effect....!

                                  

- Limitation of suits , appeals and applications are provided in The Limitation Act 1963.

- Basically every suit instituted , appeal preferred , and application be made within prescribed period.

- If any suit , appeal , application is filed after prescribed period shall be dismissed ALTHOUGH LIMITATION has not been set up as a DEFENCE .

- Question of Limitation involves a question of very root of the court's jurisdiction of the court .

 

- Point of limitation though not raised before lower court it can raised in appeal or EVEN in Court of Last RESORT.

- Question of limitation is a mandate for Court , Forum irrespective of fact whether it is raised or not as defence in Pleading.

= = Relevant Provision = =

- Section 3 to 24 of The Limitation Act 1963 .

= Relevant Judgement = = =

- Kamlesh Babu & Ors v/s Lajpat Rai Sharma & Ors A.I.R.2008 S.C.(Supp) 1931 = 2008 SAR 542.

- Foreshore Co-operative Housing Society Ltd v/s Praveen D. Desai (D) through LRS and others A.I.R.2015 S.C.2006 = 2015 SAR 789.

- State of Gujarat v/s Kothari and Associates 2016 All.SCR 857 .

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Court Fee Stamp.. Use , Refund

- Court Fee - Stamp - Use , Refund....!

                                 

- Court fee stamp is levied to as for collection of tax for government.

- Court fee stamp is paid in various civil , criminal , revenue, arbitration , tax , trust , etc judicial as well as quasi judicial proceeding.

- Basically no period of limitation is fixed or provided for using it.

- Means court fee stamp may be used at any time after purchase of it.

 

- Refund of court fee stamp in certain circumstances is provided in section 43 of Maharashtra Court Fees Act 1959.

- In case suit is Remand in appeal , Review of Judgement , Reverse or modification of firmer decision on ground of mistake Court shall refund Court fee stamp wholly by way of Refund Certificate.

- Refund certificate granted by court shall be encashed within 2 year from the date of issue of the certificate by court.

- If the suit is settled in any mode under section 89 of C.P.C. ( also in Lok Adalat ) the plaintiff shall be entitled refund of whole court fee by way of refund certificate.

- But General Stamp ( i.e. other than court fee ) shall be used within 6 month from the date of purchase.

 = = Relevant Provision = = =

-Section 15, 16 , 16A ,17 , 17 A , 43 0f Maharashtra Court Fee Act 1959.

- Section 21 of The Legal Services Authorities Act 1987.

- 89 of Code of Civil Procedure 1908.

- Section 52B of Maharashtra Stamp Act 1958.

- - - - - Relevant Judgement  - - 

- Vilas Rambhau Nakade v/s Civil Judge , Senior Division , Nagpur and others. 2006(3) M.L.J.146.

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Exhibition of Document in Civil Suit...?

- Exhibition of Document....... !

                                       

     

- Exhibition of document is for is for purpose of the identification .

- Exhibition of document is an administrative work of the court.

- Mere exhibition of document would not amount to proof of contents of document.

- Mere marking of exhibit on a document does not dispense with its proof.

- Mere exhibition of document is not sufficient to read it in evidence unless document is admissible in evidence.

- Document exhibited  be endorsed following particulars the number and title of the suit , the name of the person producing the document , the date on which it was produced , a statement of its having been so admitted and the endorsement shall or initialled by the judge.

- Non exhibiting a document does not mean that the document is not proved.

= = Relevant Provision = = =

- Order 13 of C.P.C.1908.

- Chapter 5 of The Indian Evidence Act 1872.

- Para 524 of Civil Manual.

- - Relevant Judgement - - - 

- Bana Kathari Patil v/s Rohidas Arjun Madhavi 2004(2) All.M.R.290 = 2004(2) M.L.J.752.

- Saifuddin Vazir v/s Hajabai Patel A.I.R. 2003 Bombay 36.

- Sunil T. Bhardkar v/s Santosh G. Rane 2006(3)M.L.J.811.

- Rekha Bahujan v/s Shubhada bai  Keshavrao Bunage 2012 (3) M.L.J.249.

- Hemendra R. Ghia v/s Subodh Mody 2008(6) M.L.J.886.

- Abdul Rahun Majid v/s Sheikh Rashid 2010(1) M.L.J.343.

- L.I.C. of India & Anr v/s Ram Pal Singh Bisen 2010 SAR 293.

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