Civil Procedure Code, 1908, Order 32, Rule 15 -- Suit filed by person of unsound mind through his next friend - Trial Court declared plaintiff as person of unsound mind without conducting any enquiry or following the provisions of O.32.Rr.1 to 14 CPC - Besides this, there is no document or notice on record that plaintiff was suffering from any mental illness - Appellate..........
Civil Procedure Code, 1908, Order 18, Rule 3 -- Right to begin - Onus to prove issue No.1 was put on defendant and onus to prove issues No.2 & 3 was put on plaintiff - Court misdirected itself while directing defendant to start leading their evidence first as neither issue No.1 was ordered to be treated as preliminary issue nor defendants were directed to lead their..........
Civil Procedure Code, 1908, Order 21, Rule 90 -- Auction sale - Setting aside - Material irregularity alone is not sufficient to set aside auction sale - JD has to go further and establish to the satisfaction of Court that material irregularity or fraud, as the case may be, has resulted in causing substantial injury to JD or in conducting the sale - It is only then sale so..........
Civil Procedure Code, 1908, Order 39, Rule 1, 2.O -- Temporary injunction and appointment of receiver - Property ordered to be put on public auction by appellate Court in an appeal against order granting temporary injunction and appointing receiver - None of the parties did suggest the disposal of suit property by public auction - Neither any exceptional circumstances nor..........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Amendment of eviction petition - Amendment sought to substitute word `business' with `practice' - Word `business' is of wide import and essentially include expression `practice' as it is systematic and continuous activity by a person by the application of his labour and skill with a view to earn profit - Once that is the..........
Civil Procedure Code, 1908, Order 41, Rule 33 -- Scope - Provision of O.41.R.33 CPC applies only when first appeal is filed against main judgment and decree - In execution proceedings said provision is confined only to scope of execution proceedings - There is nothing in O.41.R.33 CPC which empowers Appellate Court in execution proceedings to set aside a final judgment and..........
Civil Procedure Code, 1908, Order 41, Rule 23A -- Remand - Non-framing of issue - Lower Appellate Court not justified in setting aside the judgment of Court of first instance without setting aside findings recorded by it - Direction issued by Lower Appellate Court while remanding the matter to frame issue is also erroneous, as neither defendants being raised the question..........
Civil Procedure Code, 1908, Order 41, Rule 23A -- Remand - Once the First Appellate Court allowed the application U.41.R.27 CPC and took on record the additional evidence, it rightly set aside the judgment of trial Court giving liberty to parties to lead additional evidence in support of their case, which in turn, enabled the trial Court to decide the civil suit afresh on..........
Civil Procedure Code, 1908, Section 100 -- Second appeal - Suit for possession - Courts below concurrently decreed the plaintiff's suit by recording all the findings of fact against defendant - Said findings were neither against the pleadings nor evidence and nor against any provisions of law - Question which was formulated by High Court did not involve any question of law..........
Civil Procedure Code, 1908, Section 100 -- Second appeal - Substantial question of law - Second appeal decided on the assumption that suit is for grant of permanent injunction simpliciter - However, reading of the plaint as a whole shows that issue of title is not wholly foreign to the controversy and is relevant while considering the grant of permanent injunction -..........
