Civil Procedure Code, 1908, Order 23, Rule 1(3) -- Withdrawal of suit with liberty to file fresh suit for damages - Suit for declaration, permanent and mandatory injunction - Plaintiff neither in application contended that there is a formal defect because of which suit must fail, nor trial Court adverted on said aspect - Requirement U.O.23.R.1(3) CPC for grant of liberty..........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Amendment of plaint - Suit for declaration and injunction - Suit is at the stage of cross-examination of PW1 - Amendment sought to seek possession of suit property - However, no reasons stated in affidavit accompanying application with regard to due diligence and why plaintiffs could not bring amendment earlier - Plaintiffs..........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - On the ground of limitation - Suit for declaration, permanent injunction and joint possession - Defendant has failed to fulfil requirements of O.7.R.11 CPC - Question of limitation is a mixed question of law and fact and therefore, its decision would depend upon evidence to be led by parties - As..........
Civil Procedure Code, 1908, Order 39, Rule 1, 2 -- Ad interim prohibitory injunction - Plaintiff prima facie proved his title and possession over suit property - However, no material on record to show that defendant was ever in possession of plaint schedule property - Merely because plaintiff is working in Italy as a priest, it cannot be said that plaintiff is not having..........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Amendment of plaint - Suit for permanent injunction - Amendment sought seeking relief of mandatory injunction - Issues have been framed but trial has not commenced so far - Amendment sought is within imitation - Application allowed with costs of Rs.10,000/-...........
Civil Procedure Code, 1908, Order 1, Rule 10 -- Impleadment of a party - Suit for mandatory injunction - Suit property pertains to a passage/street which plaintiffs claim to be their exclusive street - Whereas, original defendant and added defendants both are claiming said street to be a public passage - Although said question is a matter to be decided by trial Court on..........
Civil Procedure Code, 1908, Order 39, Rule 7 -- Appointment of Commissioner - Suit for permanent injunction - Actual status of suit land is not available on record - It is thus, necessary to appoint commissioner - Trial Court while directing Commissioner to make inspection and file report alongwith coloured photographs specifically directed that Commissioner would not..........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Local Commissioner - Appointment by Court suo motu ex parte at the stage of consideration of an application to grant ad-interim injunction - While appointing Local Commissioner no palpable reason given by Court as to why Advocate Commission is required to be appointed ex parte, suo motu dispensing notice to other side -..........
Civil Procedure Code, 1908, Order 41, Rule 23A -- Remand - Suit for permanent injunction - Issues regarding identity of property and ownership and possession thereof was decided by trial Court in favour of plaintiff - However, defendant questioned the same and also sought an opportunity to produce additional evidence by filing an application U.O.41.R.27 CPC - Lower..........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Local Commissioner - Suit for permanent injunction - Both the parties claiming right over suit property - Moreover there is claim and counter claim of construction on the spot - Appointment of Tehsildar as Local Commissioner to visit spot and demarcate property after notice to parties and submit his report regarding..........
