Court : Mumbai
Decided on : Mar-08-1950
Reported in : AIR1950Bom345; (1950)52BOMLR377; ILR1951Bom364
..... in order that the real questions in controversy between them should be adjudicated upon. mr. seervai relies on o. 7, r. 11, which provides that the plaint shall be rejected in the cases mentioned in that rule and the one with which we are concerned is where it does not disclose a cause of action. mr. seervai's ..... o. 7, r. 11. but the court may prevent the operation of o. 7, r. 11, and may save the plaint being rejected by exercising its power under o. 6, r. 17, and allowing the plaint to be amended. it would indeed be an extraordinary proposition to lay down that if various averments had to be made in the ..... any way restricted or controlled by the provisions contained in o. 7, r. 11. it is perfectly true that it is incumbent upon the court to reject a plaint that does not disclose a cause of action, but it does not follow that it is not open to the court to allow a ..... that the cause of action was defective and by the amendment which he allowed the defect was cured. now, apart from authority, turning to the scheme of the civil procedure code, o. 6, r. 17, is very wide in its terms and it gives power to the court to allow either party to alter or amend his pleadings ..... and myself, in sheshgiridas shanbhag v. sunderrao 48 bom. l. r. 252 :a. i. r 1946 bom. 361, and we held that allowing an amendment of the plaint was not a judgment within clause (15), letters patent. mr. seervai has tried to distinguish this judgment. according to him we were dealing there with a case where the contention .....Tag this Judgment!
Court : Karnataka
Decided on : Mar-20-1950
Reported in : AIR1950Kant70; AIR1950Mys70
..... been applied. in that case, it was not disputed that 'action under inherent powers of the court is applicable to those instances in which no provision is made by the code of civil procedure for relief in special set of circumstances.'in ram mandar v. mahdoo lal, a. i. r. (14) 1927 pat. 369: (103) i. c. 620) it was rightly observed that ..... -fee with the result that the court ultimately rejected the plaint held, that after having paid the money, to the pleader who was a duly constituted agent and officer of the court under the legal practitioners act and the rules ..... ordered that this misc. appeal be allowed, the order of the lower court and the ex parte decree be set aside on condition that the entire amount claimed in the plaint is deposited by the defendant in the subordinate judge's court within two months from this date and that this misc. appeal against the order dismissing the application of the ..... , 4 pat. 180: ( a.i.r. (12) 1925 pat. 435), it was observed:'where a litigant handed over to his pleader the balance of the court-fee due on a plaint and the pleader's clerk, to whom the money was entrusted to be paid into court, misappropriated the same and filed bogus applications for time to pay the deficit court .....Tag this Judgment!
Court : Allahabad
Decided on : Sep-27-1950
Reported in : AIR1951All79
..... of section 4 of the act.'an argument advanced on behalf of the appellant may be noticed here. it has been pointed out that neither the code of civil procedure nor the court-fees act provides for the rejection of a memorandum of appeal for non-payment of whole or part of court-fee payable thereon; but, in face of the mandatory provisions of ..... was entitled to claim limitation from 11-6-1880, the date of the order of the high court rejecting the appeal. the court treated an order rejecting a memorandum of appeal for deficient payment of court-fee on the same footing as an order rejecting a plaint as insufficiently stamped, which amounted to a decree; and held the application for execution to be within ..... perform as nearly as may be the same duties as are conferred and imposed by this code on courts of original jurisdiction in respect of suits instituted thereon;'and that under order 7, rule 11 (c) a court of original jurisdiction has the power to reject a plaint and an order to that effect amounts to a decree; consequently, by virtue of section ..... the said clause ; and it was held that no appeal lay from the order under that clause.17. there is no analogy between the rejection of a plaint and the rejection of a memorandum of appeal; and the order rejecting or refusing to receive a memorandum of appeal, in view of the provisions of section 4, court-fees act, cannot be treated as a .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-02-1950
Reported in : AIR1950Cal479
..... defendants in the suit.4. the contention on behalf of the petitioner is that the amendment to the plaint and the aforesaid addition of parties makes the suit bad for multifariousness and that this course is not sanctioned by the provision of the code of civil procedure. in developing this argument learned advocate points out that the plaintiff's claim against the defendant l ..... misjoinder and of harass-meat and vexation is defendant 1 alone. defendant i was a party to the first application before the subordinate judge for amendment of plaint and joinder of parties which was then rejected by the subordinate judge. he was a party in the revision petition before this court which revision petition was allowed ex parts against him and the ..... from the record. this court held that they had no locus standi in the rule as they were not parties at the time when the rule was disposed of and rejected the application. this court stated that these added defendants were not bound by the order and it was open to them to agitate the matter before the trial court. this ..... singh hazari singh, rajen singh and thakur shew narayan as defendants. he amended his claim by claiming rs. 20,000/- as damages against all the five defendants. the application was rejected by the subordinate judge. the plaintiff then moved this court but did not make the defendants proposed to be added par-ties to this rule. the rule was heard ex .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Dec-01-1950
Reported in : AIR1953SC431; 17(1951)CLT73(SC); 1951(0)KLT28(SC)
..... possession but they do not appear to have been included in the decree as drawn up.secondly, the power of the high court to allow an amendment under section 149, civil procedure code is clearly one under which the plea of the bar of limitation may be ignored. there are decisions of very high authority taking that view. the contention therefore that by ..... respondents prayed for amendment of their prayer by adding the following 'except delivery of possession of schedules 'k, kha, ga', except lot no. 7 of the properties mentioned in the plaint.' when this application came before the court a division bench of the high court permitted the amendment at the appellants' own risk. the matter then again came before the registrar .....Tag this Judgment!
Court : Mumbai
Decided on : Aug-02-1950
Reported in : AIR1951Bom226; (1950)52BOMLR774; ILR1950Bom777
..... the right, title and interest of hiralal defendant 3 in the suit property. reliance was placed in this behalf on the passage occur, ring in mulla's civil procedure code at p. 906 : ' it has been stated above that what passes to a purchaser at a court-sale in execution of a money-decree is 'right ..... herein prosecuted the present suit the claim for possession of mathuradas and maganlal was to be rejected. but if the original plaintiff withdrew the present suit without the written permission of mathuradas or maganlal, or if he failed to prosecute the present suit ..... except hiralal and that the plaintiff suit was dismissed to the extent of the share of hiralal. tae suit was decreed as prayed for in the plaint in respect of the remaining shares of the other members of the family. it wag futher provided in the decree that if the original plaintiff ..... their decision on the consideration that there was no privity of contract between the auction-purchaser and the judgment-debtor. they observed that under the old civil p. c. if the purchaser had reason to believe that there was no saleable interest at all in the property sold, he had a right ..... of action against the decree-holder for refund of money. the new code had taken away that remedy, and limited the purchaser's rights to an application for refund. there was no indication in the code that the purchases had any remedy against the judgment-debtor. it was the decree-holder .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Sep-15-1950
Reported in : AIR1950SC222; (1951)53BOMLR1; (1950)IIMLJ703(SC); 1SCR621
..... is open to question in a similar way. the argument that a suit may be in infructuous because a notice under section 80 of the code of civil procedure is essential and that remedy is therefore inadequate, is unhelpful. inconvenience or want of adequate remedy does not create a right to a writ of ..... not arise until a person was actually threatened with a requisition order. an interpretation that leads to such an absurd and anomalous position cannot but be rejected. (vii) if it is contended that the provincial government had to decide this issue as and when it sought to requisition any particular land ..... as an objective fact and if that determination were liable to the subjected to the scrutiny of the court in legal proceedings, then such a procedure would have quite effectively frustrated the very object set forth in the second preamble by preventing the provincial government, by means of protracted legal proceedings ..... of certiorari. the expression 'sue' in its plain grammatical sense connotes the 'enforcement of a claim or civil right by means of legal proceedings.' the proceedings may be initiated by a plaint or by a petition of motion, and it cannot be said that what section 176 of the constitution act ..... contemplates is a proceeding which must begin with a plaint and end in a decree as laid down in the civil procedure code. 143. no argument can also in my opinion be founded upon the fact that there was no express mentioned .....Tag this Judgment!
Court : Karnataka
Decided on : Mar-30-1950
Reported in : AIR1950Kant64; AIR1950Mys64
..... court for amendment. it is contended for the appellants that no amendment should have been allowed, and that the application should have been rejected. under order, 21, rule 17, civil p.g. the executing court clearly had a discretion to allow the amendments, and the appellate court thought that the discretion had been ..... of the judgment-debtor which were not all mentioned in the original application and in these circumstances, sub-rule (2) of rule 17 of order 21 of the code of civil p.c., can have no application.'fazl ali j. in gajanand sha v. dayanand takur, a. i. r. (30) 1943 pat. 127 (21 pat ..... the execution of a decree' in rule 17, are not intended to make a party suffer for the failure of the court establishment, which checks plaints and execution petitions on their presentation, to noticed at once all defects in any application that may be received and these words do not preclude a court ..... noticed, refers to certain defects in the execution petition arising from non-compliance with the requirements of rules 11 to 14 of order 21 of the code. but we are not concerned with such defects in the present case. this is a case in which the decree-holder wants permission to proceed against ..... j. 461, make the point clear:'it was also contended by mr. srinivasan that sub-rule (2) of rule 17 of order 21 of the code of civil p.c. permitted amendments of execution applications and that if allowed such amendments would date back to the date of the original application itself, and that therefore .....Tag this Judgment!
Court : Chennai
Decided on : Jan-17-1950
Reported in : AIR1952Mad27; (1951)2MLJ438
..... existing law such as sections 37, 69 and 70 of the indian contract act and section 4(1) and (2) and section 59 of the code of civil procedure whereas the opposite party sought to support the validity of the legislation by relying upon item 21 of the provincial list. the learned judges gave a ..... disposing power of the father over the son's share, if any, of the insolvent in the properties mentioned therein. as already stated, even in the plaint the plaintiff himself understood the transaction as conveying the entire property. we therefore hold that the entire properties including the son's shares were sold under ex ..... give the entire extent of the properties sold. in the schedules it is not stated that only the father's share was sold. even in the plaint the plaintiff understood this transaction as conveying the entire family estate. we therefore hold that under ex. p-2 not only the father's interest but ..... no. 109 of 1944 on the file of the court of the subordinate judge, coimbatore for partition and possession of his one-fourth share in the plaint schedule properties mainly on the ground that the official receiver had no power to sell the shares of the members of the family other than the first ..... involved and was adjudged an insolvent in i.p. no. 63 of 1931 on the file of the court of the subordinate judge, coimbatore. the plaint schedule properties were sold in his insolvency by the official receiver. some items were purchased by one srinivasa ayyar on 24th july 1933 under ex. p-2 .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Dec-04-1950
Reported in : AIR1951SC23; 19ITR132(SC); 2SCR1
..... suit against the new province. thereupon, the respondent (the province of east bengal) moved the high court at calcutta under section 115 of the code of civil procedure, against the order of the subordinate judge, and a bench of the high court consisting of harries c.j., and chakravarthi, j. allowed the ..... where the assessment proceeding had been initiated) within the territories of the province of east bengal, became a liability of that province. the high court rejected this contention on the ground 'that article 10(2) is concerned with the liability for an actionable wrong other than breach of contract and it ..... by statute, except where the particular act was specifically directed and the crown profited by its performance. there is no such allegation in the plaint in the present case. the plaintiff could not therefore have sued the province of bengal for an actionable wrong and the suit actually brought is ..... injury imports damage. i am however certain that no action for damages can be maintained on the allegations made by the appellant in his plaint. i think that the entire argument urged on behalf of the appellant has been sufficiently answered by the high court in the following passage which ..... is no question here of the liability of the crown for damages for the negligent or tortious act of its officers. on the allegations in the plaint, which must, for the purpose of deciding the question of jurisdiction as a preliminary issue, be assumed to be well-founded, the province of bengal .....Tag this Judgment!