CPC at a glance relating to Civil appellate Jurisdiction

By Dr. Anshuman, Advocate, Patna

High Court
Guest Faculty, CNLU, Patna
& SJA, Patna

Code of Civil procedure, 1908 is the mother procedure for all disputes of
civil nature until barred. The important provisions of C.P.C.,1908,
applicable before the court having appellate jurisdictions are described under
Chapter VII (S. 96 to 112) & O 41 to 45, in addition to that other provisions
relating to incidental, special and supplemental proceedings are also
applicable as & when required. For the purpose of proper appreciation this
topic has been discussed question answer wise.

1. Which Provision prescribes that an appeal against a decree and

order passed by the Civil Judge Class II and Civil Judge Class I
shall be filed in the court of District Judge?

Appeal from Original Judgment & Decree  S.96 to 99A &

O.41CPC
Appeal from Appellate Judgment & Decree  S.100 to 103 & O.42
CPC
Appeal from orders  S. 104 to 106 & O.43 CPC
Appeal by indigent  O.44 CPC

2. Is there any period of limitation prescribed for filing of appeal

from original decree to District Judge?

Yes, there are time prescribed for filing appeal from original decree to
District Judge.
From Court to Munsiff  To the court of District Judge  30 days 

Art.116(b) 2nd Division of Schedule of Limitation Act, 1963

From the court of Sub-Judge  To the court of District Judge  30 days

 Art.116(b) 2nd Division of Schedule of Limitation Act, 1963

From the court of Sub-Judge  To the High Court  90 days 

Art.116(a) 2nd Division of Schedule of Limitation Act, 1963
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3. Whether an appeal is bound to pay the same court fees as has

been paid on the plaint ?

At the time of drafting the suit is necessary to explain the valuation of

Suit for the purpose of deciding pecuniary value of the suit and
depositing the court fee.
But when memo of appeal has been filed then it is necessary to
described in the memo about the Appeal Value. It is the appeal value
upon which the court fee is required to be paid by the appellant preferring
appeal. The court fee amount may or may not be same as has been paid
on the plaint.

4. Whether an appeal can be filed as an indigent person – If yes,

what is the procedure ?

Yes, an appeal can be filed as an indigent person. The procedure for

filing appeal has been described in Order 44 CPC. The indigent person
shall present a memo of appeal along with an application  O44R1CPC
Situation I  When application is rejected  Court shall grant time to
the applicant to deposit the court fee.
Situation II  In case the suit has been preferred as indigent person then
in that case mere filing an affidavit that he has not ceased to an indigent
person.

The appellant may claim for exemption of court fee under notification
issued by the State government in exercise of powersU/S35 of the Court
Fee Act or any other laws or rules time being in force.

5. Whether appeal from original decree against the ex-parte decree

is maintainable after dismissal of application U/O.9 R13 CPC or
vice versa ?

The remedies against the ex-parte decree are as follows :-

(a) May file a Misc. Case U/O 9R13 CPC before the court which passed
ex-parte decree.
(b) May file an Appeal U/S 96(2) CPC
(c) May file a review U/O 47R1 CPC
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(d) When ex-parte decree is alleged to have been obtained by fraud, the
defendant may institute a suit to set aside the ex-parte decree on the
ground of fraud.
(e) If Misc. application U/O 9R13 is rejected then remedy is available in
Misc. Appeal O43 R 1(d).

Note 1: Appeal from original decree against ex-parte decree is

maintainable after dismissal of application U/O 9R13 due to the reason
that in Misc. application U/O 9R13 only two points can be raised (i)
point of summons not duly served & (ii) point that defendant against
whom ex-parte takes place was prevented by any sufficient cause from
appearing when suit was called for hearing.
But its vice-versa is not true, due to the reason specified in Explanation
of O9R13 itself i.e.  Where there has been an appeal against a decree
passed ex-parte under O9R13, and the appeal has been disposed of on
any ground other than the ground that appellant has withdrawn the
appeal, no application shall lie under O9R13 for setting aside that ex-
parte decree.

Important rulings on this point:-

1. AIR 2005 SC 626 "Bhanu Kumar Jain v. Archana Kumar": 2005 AIR
SCW 270  3 Judge Bench decision
There are two simultaneous remedies available against Ex parte decree
i.e. defendant can file appeal or can file application under O. 9, R. 13 to
set aside ex parte decree. But once application under O. 9, R. 13 is
dismissed. He cannot by filing first appeal dispute correctness of order
posting suit for ex parte hearing or show cause for his non-appearance.

2. AIR 2002 SC 2286 "P. Kiran Kumar v. A. S. Khadar"= 2002 AIR

SCW 2411
The dismissal of appeal filed against ex parte decree/award on ground of
limitation. It would bar subsequent application under O. 9, R. 13 for
setting aside ex parte decree/award.

6. Whether an appeal against ex-parte decree and an application

under O9R13 CPC are maintainable simultaneously?

Yes, simultaneous application maintainable as laid down in AIR 2005

SC 626 Bhanu Kumar Jain Vs Archana Kumar (3 JJ. Bench).
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7. Whether time spent in proceeding under O9R13 CPC can

constitute sufficient cause for condoning delay in appeal?

No, since the limitation act, 1963 once started can not be stopped and it
started from the date of knowledge.
This is supported in AIR 1982 SC1397 "Rani Choudhury v. Lt. Col.
Suraj Jit Choudhury"  An appeal against Ex parte decree dismissed as
withdrawn on the ground that it is barred by limitation then the
application for setting aside decree, under O.9 R. 13 is also not
competent.

8. Whether in the appeal against ex-parte decree can be challenged

on the merits and on the grounds on which application under
O9R13 CPC can be final?

Already discussed in earlier questions.

9. Whether an appeal from the original decree can be filed against
any decree or judgment or any adverse finding? What shall be
effect if no appeal has been preferred against the any adverse
finding?

Both views are going on :-

1st view  Yes an appeal from original decree can be filed against any
decree or judgment or adverse finding.
Supporting Cases are
1. AIR 2003 SC1989 "Banarsi v. Ram Phal"
In this case a suit for specific performance of contract was filed and it was
not allowed rather court has granted the relief to the plaintiff that the
defendant shall refund the entire amount. The appeal shall be filed against
the adverse finding.

Reverse view :- No appeal can be filed in case of the adverse finding.

AIR 2004 SC1815 "Jamshed Hormusji Wadia, v. Board of Trustees, Port of
Mumbai"
According to O.41, R.22.  A person who has entirely succeeded before a
Court or Tribunal below cannot file an appeal solely for the sake of clearing
himself from the effect of an adverse finding or an adverse decision on one
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of the issues as he would not be a person falling within the meaning of the
words 'person aggrieved.'

10.Who can filed appeal? If a person who was not party in the suit
want to file an appeal, how can he file?

(i) Every party or parties to a suit adversely affected by a decree may

prefer appeal or appeals. -------- AIR1974 SC 994 :: State of
Punjab Vs Amar Singh
(ii) Any of representative of party or parties aggrieved adversely
affected may prefer appeal or appeals. --------- AIR 1974 SC 994
(iii) A person who is not party to a suit may prefer an appeal, with
leave to the court if he is bound or otherwise prejudicially affected
by such decree or order, as in such an eventually he may be said to
be an aggrieved person. ---------- AIR 1971 SC 385:: Adi
Pherozshah Gandhi Vs H.M.Seervai.

11. Whether without preferring appeal against a preliminary decree,

a party can dispute its correctness in an appeal preferred against
final decree?

According to Sec. 97 of CPC  Where any party aggrieved by a

Preliminary Decree passed does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be
preferred from the final decree.
If there are two appeals from two decrees in same suit and if
preliminary decree is set a side, the final decree is superseded. ---- AIR
1929 Cal 689

Observe the definition of decree minutely once again.

AIR 2003 SUPREME COURT 267 "Venkatrao Anantdeo Joshi v.

Malatibai"
Suit for partition - Preliminary decree passed - No appeal filed therefrom -
Respondent claiming possession through defendant in suit - Cannot at time
of passing of final decree raise plea that he was the tenant - Moreover the
'batai patra' on which basis tenancy was claimed being executed during
pendency of partition suit was hit by doctrine of lis pendens. (Paras 8, 9)
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12.Whether a memorandum of appeal can be rejected or amended

before or after registration of appeal?

A memorandum may be rejected or amended U/O 41 R3 of CPC.

(i) In case memo has of appeal is not drawn in manner prescribed in

O41R1.
(ii) In case memo of appeal filed after lapse of period of limitation but
without condonation petition.

Note 1:- In case of amendment  It is the Judge or such officer as he

appoints in this behalf shall sign or initial on the amendment.
Note 2 :- In case of rejection  Court shall record the reasons for such
rejection

Supported cases :-

AIR 1964 MAD 235 -KALIYUR M SRINIVASACHARIAR VS.

CHAIRMAN TAXATION APPEALS COMMITTEE CORPORATION OF
AIR 1971 Mad 37 - SHANMUGHAM TRANSPORTS P VS. V KUNJU
CHETTIAR
AIR 1964 Ori 86 - RAJKISHORE SAHU VS. PUSHRAJ SAGARMAL
AIR 1985 Pat 148 :: 1985 BLJ(I) 176 :: RAM KALI KUER VS.
INDRADEO CHOUDHARY

AIR 1974 SC 1126 :: GANGA BAI VS. VIJAY KUMAR

Held that the High Court was wholly in error in allowing such a belated
amendment when valuable rights had accrued to the decree-holder by lapse
of time. Decision of Bombay High Court, Reversed. (Paras 21, 22)

AIR 1977 SC 2221 :: MAHANT BIKRAM DASS CHELA VS.

FINANCIAL COMMISSIONER REVENUE PUNJAB CHANDIGARH
O41R3 is directory in nature.

AIR 1983 SC 43 :: HARCHARAN VS. STATE OF HARYANA

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Application for amendment of memo of appeal - Rejection merely on ground

of delay, held, illegal.

AIR 1984 SC 1469 :: UDAI BHAN GUPTA VS. HARI SHANKAR

BANSAL
Whenever an appeal or a revision petition is filed in the Registry of the High
Court, the defects have to be pointed out and if the revision petition filed by
the appellant is barred by limitation, the Registry ought to point out the
defect which would prompt the appellant to seek condonation of delay.
Where the objection is not taken by the Registry, the High Court at the time
of hearing should not straightaway proceed to entertain the preliminary
objection as to limitation. On the other hand it is the duty of the High Court
that in a confusing situation about the legal position as to limitation it should
call upon the appellant to seek condonation of delay, if there be any. 1983
All LJ 252, Reversed.

13.Whether ground not set forth in appeal can be taken during

hearing?

This matter has been fully described in O41R2 of CPC as

(a) The appellant shall not be heard on the ground not set forth in memo
of appeal.
(b) The appellate court shall not be confined to the grounds of objections
set forth in the memo of appeal.
(c) The appellant may take other grounds not set forth in the memo of
appeal but only after taking leave of the court.
(d) The court at the time of deciding case on the ground not set forth in
memo of appeal provide sufficient opportunity of contest on the said
ground.

14. Whether a plea not raised in trial court can be raised for the first
time in the appeal?

A pure question of law not dependent on the determination of any question

of fact should be allowed to be raised for the first time in the grounds of
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appeal by the first appellate Court. Such pure questions of law are allowed
for the first time at later stages also.

But where a new point not taken in the grounds of appeal is sought to be
raised as an additional ground by a substantive application for that purpose,
the High Court has discretion to allow the application or refuse it. But the
discretion exercised by the High Court will not be interfered with except for
good reasons, for example, where the Court acts capriciously or in disregard
of any legal principle.

AIR 1965 SUPREME COURT 1325 "Chittoori Subbanna V. Kudappa

Subbanna"

New plea - Pure question of law not depending on facts - If can be allowed
for first time in ground of appeal or even as an additional ground at later
stage-Discretion of appellate Court - Interference by superior Court.
AIR 1959 And Pra 607, Reversed.

15.What is the scope of power of the appellate court to stay the

operation of a decree?

Provisions for stay has been described in O41R5 CPC

(I ) Stay by appellate court  of proceeding or of execution
(II ) Stay by the court which passed the decree 
In both the situations followings points to be considered.
(a) in case of substantial loss may be resulted
(b) application has been made without reasonable delay
(c) security has been given by the appellant for due performance of such
decree or order
(d) ex-parte order of stay may be passed pending hearing of stay
application
(e) if memo is defective then stay shall not be granted.

Reference

16.What is the scope of power of the appellate court to dismiss

appeal on default and scope of its restoration?
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Dismissal can be made under the followings provisions by the appellate

court 

O41R11(1)  High Court may dismiss appeal upon hearing but appellate
court other than H.C. if dismiss appeal U/O41R11(1) shall deliver a
judgment in brief its ground for doing so.

O41R16  When appellant does not appear when appeal is called for
hearing, the court may make and order for dismissal of appeal.
But when appellant appeared and respondent not the appeal shall be heard
ex-parte.

Restoration for dismissal of an appeal  Dismissal made U/O 41 R11(2) &

R 16 CPC be restored U/O O41R19 CPC.

17.What is the procedure for disposal of an application for

condonation of delay in filing appeal—effect of non filing of such
application along with memo of appeal.

O41R3A & S.5 of the Limitation Act, 1963

18.What legal formality has to be followed for Cross – Objection?

O41R22  After getting a notice of appeal the respondent may within

one month of the date of service of notice prefer a cross objection before
the appellate court in which he can challenge 
(a) with respect to any issue ought to have been decided in his favour.
(b) with respect of any finding against him

19. Whether cross – objection by a respondent is maintainable after

withdrawal of appeal?

Yes , according to O41R22 (5) CPC

20. Whether a respondent who has not filed a cross objection can
raise his objection regarding any issue which was decided against
him?

Both view are available already discussed.

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AIR 2007 SUPREME COURT 989 "S. Nazeer Ahmed v. State Bank of
Mysore"
(A) Civil P.C. (5 of 1908), O.41, R.22 - APPEAL - DECREE - Appeal -
Memorandum of cross-objection by respondent - Necessary only in respect
of relief negatived - No necessity to file such memorandum for challenging
particular finding.

21.Whether cross- objection can also be filed against co-defendants?

Cross objection can be maintainable against co-defendant in two

circumstances

Situation I  When two defendant had filed a joint W.S. and later on
they have got adverse interest. As a result of which one defendant
became appellant and another defendant became respondent in appeal.
This is most general case.

Situation II  When two defendant had filed joint or separate W.S.

having common interest. In the appeal both the defendants i.e. co-
defendants became respondents and got adverse interest.

Now the question that whether cross objection by one respondent against
another respondent maintainable ?
This has been answered & discussed in AIR 1988 SUPREME COURT
54 "Mahant Dhangir v. Madan Mohan"

It has been held that Generally, the cross-objection could be urged

against the appellant. It is only by way of exception of this general rule
that one respondent may urge objection as against the other respondent.
The type of such exceptional cases are also very much limited.
For instance,
(a)when the appeal by some of the parties cannot effectively be disposed
of without opening of the matter as between the respondents inter se. Or
(b) in a case where the objections are common as against the appellant
and co-respondents.
The Court in such cases would entertain cross objection against the co-
respondent.
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22.Is there any provision about period of limitation for filing cross –
objection?

Yes, time for filing cross objection is one month from the date of service
appeal notice upon him or his pleader or within such further time as the
appellate court may see fit to allow. [under this provision petition for
condonation of delay u/s 5 may be entertained.]

23.Is there any provision regarding rehearing of appeal on

application of respondent against ex-parte decree was passed?

Yes, U/S 41R21 CPC  Where an is heard ex-parte and judgment is

pronounced against the respondent, he may apply to the appellate court to re-
hear the appeal but on two grounds only. (a) If respondent satisfies that the
notice was not duly served. & (b) If respondent satisfies the court that he
was prevented by sufficient cause from appearing when appeal was called on
hearing.

24.Whether court fee is payable on cross appeal ?

As per decision of AIR 1999 SC1747 "Superintending Engineer v. B. Subba

Reddy."

Appeal is a substantive right. It is a creation of the statute. Right to appeal

does not exist unless it is specifically conferred. Cross-objection is like an
appeal. It has all the trappings of an appeal. It is filed in the form of
memorandum and the provisions of R. 1 of O. 41 of the Code, so far as these
relate to the form and contents of the memorandum of appeal apply to cross-
objection as well. Court-fee is payable on cross-objection like that on the
memorandum of appeal.

This judgment has been overruled by AIR 2003 SC 1515 but on another
point
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25.Explain the power of an appellate court to remand a case-

Difference among the remand U/O 41R23, 23-A & R25?

O41R23  Remand of Case by Appellate Court  Where the court from

whose decree, an appeal is preferred has disposed of the suit on a
preliminary point and decree is reversed in appeal  Appellate court
remand the case.

O41R23A  Where the court from whose decree an appeal is preferred

has disposed of the case otherwise than a preliminary appoint and the
decree is reversed in appeal and a re-trial is considered necessary, the
appellate court shall have the same power as it has under O41R23.

O41R25 Where the court from whose decree the appeal is preferred
has omitted to frame or try any issue or to determine any question of fact,
which appears to the appellate court essential to the right decision of the
suit upon the merit, the appellate court may, frame issue and refer the
same for trial court and in such case shall direct court to take additional
evidence required.

Rulings 
Preliminary Points  A point is said to be a preliminary point within the
meaning of O41R23 that the decision thereon in a particular way is
sufficient to dispose of the whole suit without the necessity for a decision
on the other points in the case. --- AIR 1922 Mad 505 FB;

Example of Preliminary Points 

Point of Res judicata  AIR 1925 Mad 483 (DB)

Suit barred by limitation  (1866)5 Suth WR 63 (PC)
Suit is barred by any other rules of law  (1868) 10 Suth WR 438 (DB)
Document on which suit is based is inadmissible in evidence  AIR
1923 Bom. 142(DB)
Plaintiff is estoppled by proving his case – AIR 1926 Mad 808 (DB)
Plaintiff has no case of action  AIR 1942 Lah. 179 :: AIR 1931 Cal 606
(DB)
Suit is bad for defect in the description of the defendant  AIR 1925
Cal 716 (DB)
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Matter is already been concluded by a valid award/ decision  (1899) 22

Mad 172 (DB)
Suit has been abated  1901) 26 Bom. 203 (DB)
Where a decree is passed not after trial of all issues but on the basis of a
particular matter i.e. issue/ award  1905) 2 All LJ 477 DB
Decree passed on consent of decree  AIR 1931 PC 107
Decree passed on the basis of Commissioner’s Report 

Where the point left undecided in a suit are such that they would have
arisen only after the suit is disposed of, it can not be said to have been
decided on a preliminary point  AIR 1917 Pat 100 (DB)

Where the court has adjudicated on all the issues involved the dispute can
not be said to be o a preliminary point.  (1890) 12 All 510 (FB)

O41R23 Vs O41R25  Remand of whole case i.e. case is remitted back

to the lower court for fresh consideration under R23 where as in Rule 25
remand only issue/(s) to the lower court i.e. remitted back to the lower
court.

Remand U/O41R23 & 23A is appealable U/O 41R1(u)

Remand under /O 41R25 is revisable

Satya Bhama Devi &

Ors. vs Bibani Devi & Ors.
Jharkhand High Court [ SJ ]
M. A. No. 22 of 2003
Decided on 28/04/2009

Civil Procedure Code (5 of 1908) O.41, Rr. 23, 23A and 25

— Remand — Suit for declaration of title and permanent
injunction — Decree — Trial Court had decreed suit
without framing issue with respect to permanent
injunction — Remand of matter by lower appellate Court
with direction to frame issue — Lower appellate Court
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could not have remanded matter in terms of O. 41, R. 23

or R. 23A inasmuch as Court has exercised its power
under O. 41, R. 25 by issuing direction to frame an issue
or issues and to take evidence thereupon and to return
record together with its findings and reasons thereof —
Impugned decree passed by lower appellate Court is
liable to be set aside. (Paras 6, 7)

Hon'ble Judge(s): JAYA ROY ::

Citations :: 2009 (3) AIR Jhar R 310 :: AIR 2010 (NOC) 42
(JHAR.) :: 2010 A I H C 139 (JHARKHAND HIGH COURT) ::

General Manager, Electrical

Equipment Factory,
Tatisilwai vs Anupam
Chatterjee & Ors.
Jharkhand High Court [ SJ ]
M. A. No. 191 of 2006
Decided on 02/03/2009

Civil Procedure Code (5 of 1908) O.41, R. 23 — Remand

— Title suit — Decree — Lower appellate Court found that
issue of valuation of suit property, Court fees and
pecuniary jurisdiction of trial Court, not properly decided
— Lower appellate Court was well within jurisdiction to
pass order of remand. (Paras 5, 6)

Hon'ble Judge(s):
Citations :: 2009 (3) AIR Jhar R 401 :: AIR 2010 (NOC) 43
(JHAR.) :: 2010 A I H C 150 (JHARKHAND HIGH COURT) ::
 15

Bachchan Devi & Anr. vs Nagar

Nigam, Gorakhpur & Anr.
Supreme Court of India [ DB ]
Civil Appeal No. 992 of 2008
Decided on 05/02/2008

Civil Procedure Code (5 of 1908) O.41, R. 25 — Framing

additional issues — Powers of appellate Court.

The provision under O. 41, R. 25 becomes operative when the

appellate Court comes to the conclusion about the omission on
the part of the lower Court to frame or try any issue. Once the
appellate Court directs the lower Court to do so, it is incubment
upon the trial Court to take additional evidence required. There
may be cases where additional evidence may not be required.
But where the additional evidence is required, then the lower
Court has to return the evidence so recorded to the appellate
Court together with the findings thereon and the reasons
therefor. Requirement for recording the finding of facts and the
reasons disclosed from the facts is because the appellate Court
at the first instance has come to the conclusion that the lower
Court has omitted to frame or try any issue or to determine any
question of fact material for the right decision of the suit on
merits. Where a finding is called for on the basis of certain issues
framed by the appellate Court, the appeal is not disposed of
either in whole or in part. Therefore, the parties cannot be
barred from arguing the whole appeal after the findings are
received from the Court of the first instance. AIR 1974 SC 1702,
Rel. on. (Para 10)

Civil Procedure Code (5 of 1908) O.41, R. 25 — Use of

words ‘may’ and ‘shall’ in same provision — Manifest
intention of legislature to make one part directory and
another mandatory — But that by itself not decisive —
Power of Court to find out whether provision is directory
or mandatory — Not impaired. Interpretation of Statutes
— Words ‘may’ and ‘shall’ — Use in same provision —
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Effect.

Where the legislature uses two words “may” and “shall” in two
different parts of the same provision prima facie it would appear
that the legislature manifested its intent on to make one part
directory and another mandatory. But that by itself is not
decisive. The power of Court to find out whether the provision is
directory or mandatory remains unimpaired. (Para 34)

The ultimate rule in construing auxiliary verbs like ‘may’ and

‘shall’ is to discover the legislative intent; and the use of words
‘may’ and ‘shall’ is not decisive of its discretion or mandates. The
use of the words ‘may’ and ‘shall’ may help the Courts in
ascertaining the legislative intent without giving to either a
controlling or a determining effect. The Courts have further to
consider the subject-matter, the purpose of the provisions, the
object intended to be secured by the statute which is of prime
importance, as also the actual words employed. (Para 33)

The use of the words ‘shall’ in a statute, though generally taken

in a mandatory sense, does not necessarily mean that in every
case it shall have that effect, that is to say, that unless the words
of the statute are punctiliously followed, the proceeding or the
outcome of the proceeding would be invalid. On the other hand,
it is not always correct to say that when the word ‘may’ has been
used, the statute is only permissible or directory in the sense that
non-compliance with those provisions will not render the
proceeding invalid. (Para 28)

Civil Procedure Code (5 of 1908) O.41, R. 25 — Framing

of fresh issues — Powers of appellate Court to direct —
Defendant amended written statement during pendency
of appeal — Additional issues framed — Appellate Court
in circumstances could exercise discretion under O. 41, R.
25 and it could record evidence itself — Order remanding
matter to trial court for fresh decision — Illegal. (Para
37)
 17

Hon'ble Judge(s): ARIJIT PASAYAT :: LOKESHWAR SINGH

PANTA ::
Citations :: AIR 2008 SUPREME COURT 1282 (From :
Allahabad)* :: 2008 (3) ALJ 515 (SUPREME COURT) (From :
Allahabad)* ::

Bachchan Devi & Anr. vs Nagar

Nigam, Gorakhpur & Anr.
Supreme Court of India [ DB ]
Civil Appeal No. 992 of 2008
Decided on 05/02/2008

Civil Procedure Code (5 of 1908) O.41, R. 25 — Framing

additional issues — Powers of appellate Court.

The provision under O. 41, R. 25 becomes operative when the

appellate Court comes to the conclusion about the omission on
the part of the lower Court to frame or try any issue. Once the
appellate Court directs the lower Court to do so, it is incubment
upon the trial Court to take additional evidence required. There
may be cases where additional evidence may not be required.
But where the additional evidence is required, then the lower
Court has to return the evidence so recorded to the appellate
Court together with the findings thereon and the reasons
therefor. Requirement for recording the finding of facts and the
reasons disclosed from the facts is because the appellate Court
at the first instance has come to the conclusion that the lower
Court has omitted to frame or try any issue or to determine any
question of fact material for the right decision of the suit on
merits. Where a finding is called for on the basis of certain issues
framed by the appellate Court, the appeal is not disposed of
either in whole or in part. Therefore, the parties cannot be
barred from arguing the whole appeal after the findings are
received from the Court of the first instance. AIR 1974 SC 1702,
Rel. on. (Para 10)
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Civil Procedure Code (5 of 1908) O.41, R. 25 — Use of

words ‘may’ and ‘shall’ in same provision — Manifest
intention of legislature to make one part directory and
another mandatory — But that by itself not decisive —
Power of Court to find out whether provision is directory
or mandatory — Not impaired. Interpretation of Statutes
— Words ‘may’ and ‘shall’ — Use in same provision —
Effect.

Where the legislature uses two words “may” and “shall” in two
different parts of the same provision prima facie it would appear
that the legislature manifested its intent on to make one part
directory and another mandatory. But that by itself is not
decisive. The power of Court to find out whether the provision is
directory or mandatory remains unimpaired. (Para 34)

The ultimate rule in construing auxiliary verbs like ‘may’ and

‘shall’ is to discover the legislative intent; and the use of words
‘may’ and ‘shall’ is not decisive of its discretion or mandates. The
use of the words ‘may’ and ‘shall’ may help the Courts in
ascertaining the legislative intent without giving to either a
controlling or a determining effect. The Courts have further to
consider the subject-matter, the purpose of the provisions, the
object intended to be secured by the statute which is of prime
importance, as also the actual words employed. (Para 33)

The use of the words ‘shall’ in a statute, though generally taken

in a mandatory sense, does not necessarily mean that in every
case it shall have that effect, that is to say, that unless the words
of the statute are punctiliously followed, the proceeding or the
outcome of the proceeding would be invalid. On the other hand,
it is not always correct to say that when the word ‘may’ has been
used, the statute is only permissible or directory in the sense that
non-compliance with those provisions will not render the
proceeding invalid. (Para 28)
 19

Civil Procedure Code (5 of 1908) O.41, R. 25 — Framing

of fresh issues — Powers of appellate Court to direct —
Defendant amended written statement during pendency
of appeal — Additional issues framed — Appellate Court
in circumstances could exercise discretion under O. 41, R.
25 and it could record evidence itself — Order remanding
matter to trial court for fresh decision — Illegal. (Para
37)

Hon'ble Judge(s): ARIJIT PASAYAT :: LOKESHWAR SINGH

PANTA ::
Citations :: AIR 2008 SUPREME COURT 1282 (From :
Allahabad)* :: 2008 (3) ALJ 515 (SUPREME COURT) (From :
Allahabad)* ::

Additional Evidence O41R27 CPC

Shyam Gopal Bindal &

Ors vs Land Acquisition Officer
& Anr
Supreme Court of India [ DB ]
Civil Appeal No. 192 of 2010
Decided on 11/01/2010

Civil Procedure Code (5 of 1908) O.41R. 27 — Additional

evidence — Permission to adduce — Suit filed by
appellants predecessors challenging acquisition of his
 20

land and injunction against dispossession — Plaintiff

failing to produce evidence as to ownership due to
death — Appeal against dismissal of suit — Appellant
filing application to adduce additional evidence as to
ownership of land — Rejection of — Improper. S.B.C.S.A.
No. 305 of 2006, D/- 3-1-2008 (Raj), Reversed, (Para 8)

Hon'ble Judge(s): TARUN CHATTERJEE :: S. S. NIJJAR ::

Citations :: 2010 AIR SCW 820 (From : Rajasthan) :: AIR 2010
SUPREME COURT 690 (From : Rajasthan) ::

Ramdulare & Anr. vs Motichand

& Ors.
Chattisgarh High Court [ SJ ]
Second Appeal No. 626 of 1998
Decided on 27/08/2009

Civil Procedure Code (5 of 1908) O.26, R. 9 —

Appointment of Commissioner — Suit for recovery of rent
— Plaintiff seeking local inspection of suit property
alleged to have been owned jointly — Plaintiff claimed to
be co-owner of suit property and thereby entitlement to
receive portion of rent — Pleading and evidence do not
disclose any dispute of boundary or identity of property
— Entitlement of rent or question of spending money for
construction cannot be ascertained by Commissioner —
In absence of any pleading or evidence of dispute of
identity of property — Commission cannot be issued —
And would not materially affect decision of Court.

Civil Procedure Code (5 of 1908) O.41, R. 27 —

Production of additional evidence — Suit for recovery of
rent — Plaintiff claimed to be co-owner of suit property
 21

and hence entitled to receive portion of rent — Plaintiff

sought to adduce demarcation report so as to prove that
he is co-owner of suit property — However, there is no
pleading in the plaint that the plaintiffs and defendant
No. 1 have constructed the shops jointly — Plaintiffs
cannot be allowed to set up a new case for declaration of
ownership — In absence of any dispute and pleading of
identity of the property, additional evidence of
demarcation report was not necessary.

Hon'ble Judge(s): T. P. SHARMA ::

Citations :: AIR 2010 (NOC) 171 (CHH.) :: 2010 AIHC (NOC)
352 (CHH.) ::

Shambhu Prasad vs Shamim

Jahan.
Allahabad High Court [ SJ ]
Second Appeal No. 631 of 2007
Decided on 18/04/2008

Civil Procedure Code (5 of 1908) O.41, Rr. 25, 27 —

Remand of case — When necessary — Framing of new
issue — Evidence was required to be led to decide issue
so framed — In such case Court has no other option but
to remand matter back to trial Court — It could not have
brushed aside by saying that defendant declined to lead
additional evidence and decide issue against him,
specially in case where discretionary relief has been
claimed and statute also provides to consider equities
while granting the relief. (Para 17)

Specific Relief Act (47 of 1963) S.16(c) — Agreement to

sell — Suit for specific performance — Readiness and
willingness — Agreement entitled plaintiff vendee to get
sale deed executed by stipulated date and in event of
 22

failure, she had right to get it done through Court —

Plaintiff filed suit after lapse of 4 years — Cannot be said
to be ready and willing to perform his part of contract —
Not entitled to relief of specific performance. (Paras 18,
19)

Hon'ble Judge(s): POONAM SRIVASTAV ::

Citations :: 2008 (6) ALJ 70 :: AIR 2009 (NOC) 55 (ALL.) =
2008 (6) ALJ 70 :: 2009 (1) ABR (NOC) 151 (ALL.) = 2008 (6)
ALJ 70 ::

Haryana State Industrial

Development
Corporation vs M/s. Cork
Manufacturing Co.
Supreme Court of India [ DB ]
Civil Appeal No. 3940 of 2007
Decided on 27/08/2007

Civil Procedure Code (5 of 1908) O.41, R. 27 — Additional

evidence — Production in appeal — Inadvertence or lack
of proper legal advice — Not ground to admit additional
evidence — That also does not constitute “substantial
cause”.

Per Tarun Chatterjee, J. :— Order 41, Rule 27 of the C. P. C.

does not empower an appellate Court to accept additional
evidence on the ground that such evidence could not be
produced or filed either before the trial Court or before the first
appellate Court due to inadvertence or lack of proper legal
advice. Neither can it be said that lack of proper legal advice or
inadvertence to produce the legal notice in evidence is a ground
to hold that there was substantial cause for acceptance of the
additional evidence. Similarly, non-realization of the importance
of the documents due to inadvertence or lack of proper legal
 23

advice also would not bring the case within the expression “other
substantial cause” in Order 41, Rule 27 of the C. P. C. (Para 17)

Civil Procedure Code (5 of 1908) O.41, R. 27 — Additional

evidence — Production in appeal — Suit for permanent
injunction restraining Corporation from dispossessing
plaintiff of Flat allotted on ground of resumption order —
Knowledge of resumption order denied by plaintiff —
Notice sent by plaintiff sought to be adducd as additional
evidence in second appeal — Whether liable to be
admitted.

The respondent was alloted an industrial plot by appellant,

Corporation. The plot was resumed for violation of terms of
allotment order. The respondent filed a suit praying for a decree
of permanent injunction restraining the appellant from interfering
and/or disturbing in any manner the possession of the suit plot
and further restraining the appellant from re-allotting the plot to
any other person on the basis of resumption order, if any.
Against concurrent finding that suit ought to be decreed, the
appellant filed second appeal. Application for production of legal
notice issued by respondent to the appellant as additional
evidence was filed by appellant. The ground raised in support
was that the legal notice could not be produced in evidence
before the trial Court or before the first appellate Court due to
inadvertence and lack of proper legal advice.

Held, Per Tarun Chatterjee, J. :— In facts and circumstances of

case, legal notice could not be admitted as additional evidence.
The legal notice issued by the counsel for the respondent to the
appellant which was sought to be admitted as additional
evidence at the second appellate stage was lying with the
appellant during the pendency of the suit and also during the
pendency of the first appeal. The appellant in its written
statement had categorically taken the plea of limitation which
was also one of the main issues in the suit. It is, therefore,
difficult to conceive that the said notice issued by the lawyer of
the respondent could not either be produced before the trial
 24

Court or before the first appellate Court due to lack of proper

legal advice. It cannot also be imagined that the appellant having
taken a specific plea in the written statement regarding limitation
of the suit could not produce the same due to inadvertence.
(Para 17)

Moreover, the legal notice was not at all required by the

appellate Court to pronounce a proper judgment in the appeal.
(Para 17)

Per P. K. Balasubramanyan, J. (Contra) :— Not even an objection

was filed on behalf of the plaintiff to the application under Order
41, Rule 27 of the Code denying the issue of a notice by the
plaintiff respondent. There was no denial of the status of the
counsel who had issued the notice on behalf of the plaintiff
respondent. There is a presumption that when an Advocate
sends a notice on behalf of a client, the notice is sent by him on
instructions from his client. After all, the purpose for which the
notice was produced was only to show that the plaintiff
respondent was aware of the resumption. Even otherwise, the
letters produced at the trial do indicate that the respondent was
aware of the resumption of the plot. Therefore, this was a case
where the document produced under Order 41, Rule 27 of the
Code was required to enable the High Court to pronounce a
judgment more satisfactory to its conscience constituting other
sufficient cause within the meaning of Order 41, Rule 27 of the
Code for production of additional evidence. (Para 35) Per Court :
— Matter referred to Larger Bench in view of difference in
opinion. (Para 40)

Civil Procedure Code (5 of 1908) S.100 — Finding of fact

— Interference — Plaintiff allotted plot by Corporation —
Allotment made on condition of putting up industry and
starting production within 2 yrs. — Resumption of plot on
plaintiff’s failure — Legality — Plea by plaintiff that
construction was impossible because of H. T. Pole on plot
agreed to be removed by Corporation — Findings of fact
that explanation of plaintiff needs to be accepted — Not
 25

perverse — Not liable to be interfered with (Per Tarun

Chatterjee, J.) — When allotment order did not contain
stipulation as to removal of H. T. Pole plaintiff could not
raise plea on basis of subsequent understanding —
Finding that resumption order is invalid is, therefore,
perverse — Liable to interference. (Per P.
Balasubramanyan, J.) — Matter referred to Larger Bench.
(Paras 18, 32)

Hon'ble Judge(s): TARUN CHATTERJEE :: P. K.

BALASUBRAMANYAM ::
Citations :: 2007 AIR SCW 6084 (From : Punjab & Haryana)* ::
AIR 2008 SUPREME COURT 56 (From : Punjab & Haryana)* ::

K. R. Mohan Reddy vs K. R.
Mohan Reddy
Supreme Court of India [ DB ]
Civil Appeal No. 4588 of 2007
Decided on 26/09/2007

Civil Procedure Code (5 of 1908) O.41, R.27(1)(aa), (b) —

Additional evidence — Adduction at appellate stage —
Application made under O. 41, R. 27(1), Cl. (aa) —
Cannot be proceeded with as if it is one under Cl. (b) of
O. 41, R. 27(1) — Conditions precedent for application of
Cl. (aa) and Cl. (b) are different.

Clauses (a), (aa) and (b) of sub-rule (1) of Rule 27 of Order 41

refer to three different situations. Power of the appellate Court to
pass any order thereunder is limited. For exercising its
jurisdiction thereunder, the appellate Court must arrive at a
finding that one or the other conditions enumerated thereunder
is satisfied. A good reason must also be shown as to why the
evidence was not produced in the trial Court. The conditions
precedent for application of Clause (aa) of sub-rule (1) of Rule
27 of Order XLI is different from that of Clause (b). In the event
 26

the former is to be applied, it would be for the applicant to show

that the ingredients or conditions precedent mentioned therein
are satisfied. On the other hand Clause (b) to sub-rule (1) of
Rule 27 of Order XLI of CPC is to be taken recourse to, the
appellate Court was bound to consider the entire evidence on
record and come to an independent finding for arriving at a just
decision; adduction of additional evidence as has been prayed by
the appellant was necessary. (Paras 15, 18)

Hon'ble Judge(s): S. B. SINHA :: H. S. BEDI ::

Citations :: 2007 AIR SCW 7597 :: AIR 2008 SUPREME COURT
579 (From : AIR 2007 (NOC) 148 : 2007 (2) AIR Jhar R (NOC)
470 (AP)) ::

K. S. Krishna Sarma vs Kifayat

Ali.
Supreme Court of India [ DB ]
Civil Appeal No. 187 of 2008
Decided on 09/01/2008

Civil Procedure Code (5 of 1908) O.41, R. 27 — Additional

evidence — Suit for declaration of title — Defendant
subsequently impleaded — Case remanded with direction
to consider matter in so far as interest of added
defendant is concerned — Additional issues framed —
Parties cannot lead evidence afresh on other issues —
Evidence to be restricted in respect of defence taken by
the newly impleaded defendant in written statement.
(Para 6)

Hon'ble Judge(s): ARIJIT PASAYAT :: P. SATHASIVAM ::

Citations :: 2008 AIR SCW 754 (From : Andhra Pradesh) :: AIR
2008 SUPREME COURT 1337 (From : Andhra Pradesh) ::
 27

Basayya I.
Mathad vs Rudrayya S.
Mathad & Ors.
Supreme Court of India [ DB ]
Civil Appeal No. 1349 of 2001
Decided on 24/01/2008

Civil Procedure Code (5 of 1908) S.100 — Second

appeal — Failure of High Court to frame substantial
question of law — Order of High Court liable to be set
aside. RSA No. 131 of 1999, D/- 16-3-1999 (Kant.),
Reversed. (Para 8)

Civil Procedure Code (5 of 1908) S.100 — Finding of

fact — Interference by High Court — Not permissible.
(Para 8)

Civil Procedure Code (5 of 1908) O.41, R. 27 —

Additional evidence — Finding of Court based on
document produced at time of argument dehors to R.
27 — High Court neither followed conditions for
production of additional evidence nor recorded reason
for basing reliance on same — Order of High Court
liable to be set aside. R.S.A. No. 131 of 1999, D/- 16-3-
1999 (Kant.), Reversed. (Para 8)

Civil Procedure Code (5 of 1908) S.100 — Powers of

High Court — Impermissible for High Court to arrive at
decision that suit property forms part of family
property partible among members of family without
adverting to acceptable materials placed before it in
terms of procedure and in accordance with law. R.S.A.
No. 131 of 1999, D/- 16-3-1999 (Kant.), Reversed.
(Para 8)

Hon'ble Judge(s): ARIJIT PASAYAT :: P. SATHASIVAM ::

 28

Citations :: AIR 2008 SUPREME COURT 1108 (From :

Karnataka) ::

Eastern Equipment & Sales

Ltd. vs ING. Yash Kumar
Khanna.
Supreme Court of India [ DB ]
Civil Appeal No. 3178 of 2008
Decided on 30/04/2008

Civil Procedure Code (5 of 1908) O.41, R. 27 — Additional

evidence — Adduction of — Application under O. 41 R. 27
filed in appeal — Appellate Court ought to have taken
appeal along with application for acceptance of
additional evidence — Rejection of application under O.
41 R. 27 — Not proper — Appellate Court directed to
decide pending appeal along with application under O. 41
R. 27 on merits. C. M. P. No. 41 of 2007, D/- 10-1-2007
(Delhi), Reversed. (Para 5)

Hon'ble Judge(s): TARUN CHATTERJEE :: HARJIT SINGH BEDI

::
Citations :: 2008 AIR SCW 3891 (From : Delhi)* :: AIR 2008
SUPREME COURT 2360 (From : Delhi)* ::

Rulings :

Appeal — Once admitted and placed for hearing — It can be

dismissed for default — But cannot be decided on merits in
absence of appellant (or his advocate). (Para 44)
 29

Secretary, Deptt. of Horticulture,

Chandigarh & Anr. vs Raghu
Raj.
Supreme Court of India [ DB ]
Civil Appeal No. 6142 of 2008
Decided on 17/10/2008

Civil Procedure Code (5 of 1908) S.100 — Second appeal

— Dismissal of, in absence of advocate of appellant —
Held, in facts and circumstances was not proper. 2006
(2) Cur LJ (CCR) 485 and C. M. No. 8706-C of 2006 (in
2006 (2) Cur LJ (CCR) 485), D/- 1-9-2006 (P&H),
Reversed.

In the instant case the second appeal was admitted in 1980 and
was pending for final hearing. Orders were passed from time to
time between 2004 and 2006. On one of the adjourned date in
2006 when the arguments of respondent were heard by High
Court and order was reserved. On next date the High Court
found that substantial question of law was not framed. Thus, on
rehearing on next day the High Court framed substantial
question of law for the first time. The High Court, however on
next day dismissed appeal in absence of the appellants or their
counsel.

Held, in the circumstances, the High Court ought not to have

decided the appeal in absence of the appellants’ counsel. Even
though the counsel for the appellant was not present, it would
have been appropriate, had the High Court granted an
opportunity to the counsel for the appellant to make his
submissions by adjourning the matter. Thus, the order of the
High Court would be liable to be set aside. 2006 (2) Cur LJ (CCR)
485 and C. M. No. 8706-C of 2006 (in 2006 (2) Cur LJ (CCR)
485), D/- 1-9-2006 (P.&H.), Reversed. (Paras 35, 40, 45, 47)

Civil Procedure Code (5 of 1908) O.41, R. 17; O. 42, R. 1

 30

— Appeal — Once admitted and placed for hearing — It

can be dismissed for default — But cannot be decided on
merits in absence of appellant (or his advocate). (Para
44)

Hon'ble Judge(s): C. K. THAKKAR :: D. K. JAIN ::

Citations :: 2008 AIR SCW 7630 (From : Punjab and Haryana)*
:: AIR 2009 SUPREME COURT 514 (From : Punjab and Haryana)*
::

Sita Devi & Anr. vs Indradeo Lal

& Ors.
Patna High Court [ SJ ]
Civil Review No. 98 of 2007
Decided on 09/02/2009

Civil Procedure Code (5 of 1908) O.41, R. 17 — Hearing of

appeal — Appellant or his pleader not arguing case nor
appearing when appeal was called for final hearing —
Appellate Court cannot legally dismiss appeal on merit —
It will have only two options left, namely either to
adjourn the case fixing another date of hearing or to
dismiss appeal for default u/R. 17, whereafter appellant
shall have remedy u/R. 19.

Considering the scheme of Code with regard to procedure to be

adopted by an appellate Court while hearing an appeal, it
becomes quite apparent that Rules under O. XLI up to Rule 11
deal with procedure until the admission & the Rules thereafter
deal with the procedure adopted by Courts after admission stage
up till the stage of hearing of the appeal u/R. 30. R. 30 r/w Rules
16 & 17 (with explanation) of O. XLI of the Code specially show
that the judgment has to be pronounced after hearing the parties
or their respective pleaders & while doing so, first of all, the
appellants or his pleader shall be heard in support of the appeal
 31

& if no merit is found in his contention, then the appeal should

be dismissed & only if any merit is found by the Court in the
argument of the appellant, then the respondent or his pleader
should be heard and in such a case, the appellant shall be
entitled to reply.

If the appellant appears & respondent does not appear, the

appeal has to be heard ex parte, but where the appellant or his
pleader does not appear then, there will be no question of
hearing of the appellant or his pleader and when the appellant or
his pleader is not heard, then there will be no occasion for
hearing the respondent or his pleader and hence the Court would
have no alternative but to make an order that appeal is
dismissed for default due to non-appearance of appellant or his
pleader. There is no scope for disgression from the specific
provisions of law & if the appellant or his pleader does not argue
& does not appear when the appeal is called for final hearing, the
Court hearing the appeal cannot legally dismiss the appeal on
merit, rather it will have only two options left, namely either to
adjourn the case fixing another date of hearing or to dismiss the
appeal for default u/R. 17, whereafter the appellant shall have a
remedy u/R. 19. AIR 1934 Pat 341, (1996) 6 SCC 62 & 2008 AIR
SCW 7630 Rel. on. (Paras 8, 9, 10)

Hon'ble Judge(s): S. N. HUSSAIN ::

Citations :: AIR 2009 PATNA 76 :: 2009 (3) ALJ (NOC) 548
(PAT.) :: 2009 AIHC (NOC) 442 (PAT.) ::

Vijai Kumar vs Kiran Devi & Ors.

Patna High Court [ SJ ]
M. A. No. 320 of 2004
Decided on 03/07/2007

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Cannot be legally equated
 32

with issuance of an order of injunction — For order of

injunction prima facie case has to be shown, but in case
of appointment of Receiver prima facie case would not be
sufficient — Rather plaintiff has to show that he has a
very excellent chance of succeeding in suit. AIR 1955
Mad 430, Relied on.

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Application for, in partition
suit — Merely showing case of adverse and conflicting
claims to property will not suffice — Plaintiff has to show
some emergency or danger demanding immediate action
— And person in possession has obtained it through fraud
or force requiring interposition by Receiver for security of
property. AIR 1955 Mad 430, Rel. on.

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Powers of Court — Receiver
should not be appointed in supersession of bona fide
possessor of property in controversy — Bona fides of
possessor have to be presumed until contrary is
established.

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Validity — Suit for partition —
All properties in suit were not lands and neither there
was consent of all parties for appointment of receiver,
nor any special circumstances was shown by plaintiff
with respect of any waste or decay of suit property — No
definite case of unity of title — Defendant and his wife
and son were independently dealing with suit properties
as absolute owners and two of his sisters were
supporting his case throughout — Held, no case for
appointment of receiver was made out by plaintiff. AIR
1976 Patna 366 held per incuriam. AIR 1948 Pat 195 and
1978 B B C J 288, Relied on.
 33

Hon'ble Judge(s): S. N. HUSSAIN ::

Citations :: 2008 (1) ABR (NOC) 45 (PAT.) = AIR 2007 Patna
166 :: 2008 (1) ALJ (NOC) 61 (PAT.) = AIR 2007 Patna 166 ::
2008 (1) AIR Jhar R 205 (Patna High Court) ::

Vijai Kumar vs Kiran Devi &

Ors.
Patna High Court [ SJ ]
M. A. No. 320 of 2004
Decided on 03/07/2007

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Cannot be legally equated
with issuance of an order of injunction — For order of
injunction prima facie case has to be shown, but in case
of appointment of Receiver prima facie case would not
be sufficient — Rather plaintiff has to show that he has
a very excellent chance of succeeding in suit. AIR 1955
Mad 430, Relied on.

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Application for, in partition
suit — Merely showing case of adverse and conflicting
claims to property will not suffice — Plaintiff has to
show some emergency or danger demanding immediate
action — And person in possession has obtained it
through fraud or force requiring interposition by
Receiver for security of property. AIR 1955 Mad 430,
Rel. on.

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Powers of Court — Receiver
should not be appointed in supersession of bona fide
possessor of property in controversy — Bona fides of
possessor have to be presumed until contrary is
established.
 34

Civil Procedure Code (5 of 1908) O.41, R. 1 —

Appointment of Receiver — Validity — Suit for partition
— All properties in suit were not lands and neither there
was consent of all parties for appointment of receiver,
nor any special circumstances was shown by plaintiff
with respect of any waste or decay of suit property —
No definite case of unity of title — Defendant and his
wife and son were independently dealing with suit
properties as absolute owners and two of his sisters
were supporting his case throughout — Held, no case
for appointment of receiver was made out by plaintiff.
AIR 1976 Patna 366 held per incuriam. AIR 1948 Pat
195 and 1978 B B C J 288, Relied on.

Hon'ble Judge(s): S. N. HUSSAIN ::

Citations :: 2008 (1) ABR (NOC) 45 (PAT.) = AIR 2007 Patna
166 :: 2008 (1) ALJ (NOC) 61 (PAT.) = AIR 2007 Patna 166 ::
2008 (1) AIR Jhar R 205 (Patna High Court) ::

Indu Bhushan vs Munna Lal &

Anr.
Supreme Court of India [ DB ]
Civil Appeal No. 438 of 2007
Decided on 02/02/2007

Civil Procedure Code (5 of 1908) O.41, R.21; O. 5, R. 9 —

Ex parte order in appeal — Application for rehearing
appeal — Ground that there was no service of notice
through process server or by registered post — Not one
but several process servers report shown to have given
notice relating to service — Their endorsements were
sufficient to show service of notice relating to appeal —
No material placed before Court to show that
endorsements made by process servers were false or
erroneous — Rejection of application — No interference.
 35

AIR 1989 SC 1433, Disting. (Paras 11, 12)

Hon'ble Judge(s): ARIJIT PASAYAT :: S. H. KAPADIA ::

Citations :: 07 AIR SCW 1068 (From : 2004 All LJ 4049) :: AIR
2007 SUPREME COURT 1114 (From : 2004 All L J 4049) :: 2007
(2) ALJ 751 (SUPREME COURT) (From : 2004 All LJ 4049) ::

Ram Keshwar
Prasad vs Harakhdeo Sharma &
Ors.
Patna High Court [ SJ ]
M. A. P. P No. 25 of 1994
Decided on 18/04/2007

Civil Procedure Code (5 of 1908) O.41, R. 19 —

Restoration of appeal dismissed for default — It is the
duty of Court to see that no vexatious suit be allowed to
continue even for single day — Bullocks of plaintiff-
appellant were attached in certificate proceeding —
Order of Certificate Officer and said attachment was
made for realisation of loan amount which appellant had
obtained from Land Mortgage Bank but had failed to
repay laon — Appellant filed money suit — Very
maintainability of suit was doubtful and such suit would
come in category of vexatious suit — Appeal cannot be
allowed to restore such suit.

Hon'ble Judge(s): SYED MD. MAHFOOZ ALAM ::

Citations :: AIR 2007 (NOC) 2500 (PAT.) :: 2008 AIHC (NOC)
146 (PAT.) ::
 36

Stay in Money Decree 

Malwa Strips Pvt. Ltd. vs Jyoti

Ltd.
Supreme Court of India [ DB ]
Civil Appeal No. 7410 of 2008
Decided on 18/12/2008

Civil Procedure Code (5 of 1908) O.41, Rr.1(3), 5(5) —

Appeal against money decree — Stay to execution —
Appeal filed without making deposit or furnishing
security — Stay to execution of decree cannot be granted
without making out exceptional case. I. A. No. 1624 of
2008 in C. F. A. No. 152 of 2008, D/- 27-3-2008 and I. A.
No. 4211 of 2008, D/- 12-5-2008 (MP), Reveresed.

Even if provisions of O. 41 R. 1(3) making predeposit of decretal

amount or giving of security a condition for filing appeal against
money decree is held to be not mandatory, the purpose for
which such a provision has been inserted should be taken into
consideration. An exceptional case has therefore, to be made out
for stay of execution of a money decree. The Parliamentary
intent should have been given effect to where stay was granted.
The High Court in the instant case, neither on ground that an
exceptional case has been made out nor after arriving at the
conclusion that predeposit would cause undue hardship to the
appellant, passed the order of stay, the order was liable to be set
aside. I. A. No. 1624 of 2008 in C. F. A. No. 152 of 2008 D/- 27-
3-2008 and I. A. No. 4211 of 2008, D/- 12-5-2008 (MP),
Reversed. (Paras 12, 13, 14)

Hon'ble Judge(s): CYRIAC JOSEPH ::

Citations :: 2009 AIR SCW 1113 (From : Madhya Pradesh)* ::
AIR 2009 SUPREME COURT 1581 (From : Madhya Pradesh)* ::
 37

Adverse Possession Vs Illegal Possession

Irshad Ali (Since deceased) and

Anr. vs Viresh Agarwal and Ors.
Allahabad High Court [ SJ ]
Sec. A No. 575 of 2006
Decided on 30/06/2008

Limitation Act (36 of 1963) Art.65 — Adverse possession

— Pleadings — Claim of adverse possession was raised
before lower appellate court but was neither pleaded nor
any evidence to establish adverse possession was
adduced — There is difference between adverse
possession and illegal possession — Any unauthorized
possession would not automatically confer right or title
on basis of adverse possession unless and until it is
established that possession was continuous without any
title and within knowledge of actual claimant as well as
actual claimant did not raise any objection for the said
continuous period — These facts was neither pleaded nor
established by evidence - Refusing relief to appellants on
ground of adverse possession. Not improper. (Para 18)

Evidence Act (1 of 1872) S.90, 76 — Presumption as to

document thirty years old — Copy of sale deed brought
on record by appellants was only photostat copy, which
was not even registered — Sale deed was obtained from
Court, which cannot be said to be a proper custody —
Refusal to place reliance on such sale deed, not improper.
(Paras 22, 23)

Civil Procedure Code (5 of 1908) O.41R. 33 — Appeal —

Failure to frame points for determination — Effect —
Though points for determination have not been
formulated in serial manner yet appellate court had
recorded categorical findings on each and every issue —
Error and reasons were assigned while agreeing with
 38

findings of trial court and confirming it or while

disagreeing with part of decision while granting benefit
to plaintiff — No illegality. (Paras 26, 27)

Hon'ble Judge(s): POONAM SRIVASTAV ::

Citations :: 2008 (5) ALJ 537 :: AIR 2009 (NOC) 197 (ALL.) =
2008 (5) ALJ 537 :: 2009 A I H C 110 (ALLAHABAD HIGH
COURT) ::

26.What are the exceptional circumstances under which an appellate

court can remand a suit?

27.Whether remand of suit starts a de-novo trial?

28.Whether an appellate court can remand a suit on the ground of non-

joinder of parties?

29.Whether an appellate court can remand a suit mechanically?

30.Whether an appellate court should remand a suit simply to write a

fresh judgment by the trial court?

31. What are the limitation of power of appellate court to remand suit on
the point of issue?

32.What is the meaning of phrase “proceedings incidental to an appeal”?

Explain.

33.Whether issuance of notice to the respondent/ defendant who remains

ex-parte or did not submit address for service, is mandatory?
 39

34.Whether an appeal against the decree granted on non-compliance of

conditions of leave to defend the suit under O37 CPC, defendant can
raise for contention regarding refusal of leave to defend the case by
the trial court?

35. What happens to appeal when the decree against which appeal was
filed become infructuous?

36. Whether there is any remedy by way of appeal to a party aggrieved

by a compromise decree of the ground that it was not lawful?

37.Explain the power and scope of taking additional evidence by the

appellate court.

38.Whether mechanical remand of an appeal judge made delay in

disposal of suit?

39.Whether a decree can be set-aside or modified or a case can be

remanded n the basis of any error or irregularity, which do not affect
the merit of jurisdiction.

40.Whether a decree passed having no territorial or pecuniary jurisdiction

must set-aside in appeal?

41.Whether the admissibility ad validity of a document exhibited and

marked without objection can be challenged in appeal?

42.Which orders are appellable? Explain the law.

43.Explain the power of Appellate court u/s 107(2) & O41R33 of C.P.C.-
Duty of First appellate court in disposing of the cases on the merits—
while arriving at a different finding or on confirming.

44.What are the limitation in exercise of discretionary poer U/O 41R33?

explain the light of Benarasi Das Case.

45.Can a decree in favour of plaintiff, who is not joined as respondent, be

set aside in appeal, where in an appeal against the decree contained
separate relief in favour of each plaintiff?
 40

46.Scope of and ambit of R4 & 44 of O41 to grant relief to person

although they have no approached the court as appellant and
respondent.

47.Explain the scope and ambit of O41R4 CPC

I. When one of the appeal arising from same decree has been
abated.
II. When the appeal is abated and cross –objection stands.

48. What are the provisions regarding judgment and decree of an

appellate court ?

49.What is the meaning of doctrine of merger of lower court’s decree

with that of the appellate court

50.Under what circumstances an appeal can be heard and disposed

of without notice to the respondent/ respondents?

51.

Here the power

AIR 1973 SUPREME COURT 2384 "Shamsher Singh v. Rajinder

Prashad"
Brief Note: - (A) An order rejecting a plaint under O. 7, R. 11, Civil P. C.
for non-payment of the additional court-fee demanded is appealable as a
decree and when the order is reversed in appeal by the High Court a
second appeal would lie under S. 100 C.P.C. on the ground that the
decision of the first appellate court on the interpretation of Section 7 (iv)
(c) is a question of law. Furthermore, in a case in which the Supreme
Court has granted special leave the question whether an appeal lies or not
does not arise.