Case BriefsHigh Courts

Jharkhand High Court: The Bench of Sujit Narayan Prasad, J. disposed of a petition seeking to make amendment in the plaint as stipulated under schedule to the petition.

To state the facts briefly the petitioner had filed for declaration of right and title over the suit property in which the respondents had appeared and filed written statements. Also a petition under Order 6 Rule 17 has been filed for incorporating in the plaint: “during the pendency of the suit the defendant on the strength of lathis and muscle man encroached suit land and constructed house over the portion of the suit land illegally which is liable to be removed by the process of the court.”

The trial Court was of the opinion that such amendment would change the nature of the suit since the amendment that was sought for was in the nature of seeking a direction for removing the defendant from the land while the suit was for a declaration of right and title over the land in question. Also, the fact that the petitioner had knowledge of the said encroachment was considered by the Court.

The Court placed reliance on Mani Nariman Daruwala v. Phiroz N. Bhatena, (1991) 3 SCC 141 and Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshiv, (1995) 6 SCC 576, while enumerating the principles of exercising the jurisdiction of superintendence under Article 227 of the Constitution. And further held that, “In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised”. Also opined that, in the scope of Order 6 Rule 17 and the scope of Article 227 of the Constitution of India, the order needs no interference since there is no error apparent on the face of the record. [Shyam Sunder Saw v. Manoj Yadav, 2019 SCC OnLine Jhar 233, Order dated 04-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J. dismissed a revision petition filed against the order of Additional District Judge whereby petitioners application under Order 7 Rule 11 CPC was dismissed.

The respondents, an unregistered partnership firm, had filed a suit against the petitioners for recovery of Rs 24,41,967 on account of dishonour of cheques. The petitioners filed an application under Order 7 Rule 11 CPC for rejection of plaint on the ground that the suit was barred under Section 69(2) of the Indian Partnership Act, 1932. The application was dismissed as mentioned above. Notably, Section 69(2) specifies that no suit to enforce a right arising from a contract shall be instituted in any court against any third party by an unregistered firm. Aggrieved by the dismissal of the application, the petitioners were before the High Court.

The High Court noted that in the instant case, the respondents were seeking enforcement of liability of the petitioners created under Sections 30 and 37 of the Negotiable Instruments Act, 1881 as the cause of action for the plaint was based on dishonour of cheques. Reference was made to the judgment of Kerala High Court in Afsal Baker v. Maya Printers, 2016 SCC OnLine Ker 29914,  wherein it was observed, “by virtue of Section 30 and 37 of the Negotiable Instruments Act, on the dishonour of a cheque, the statute creates liability on the drawer, apart from the general law of contracts.” In such view of the matter, the Court held that since the suit was not based on any contract between the parties, the bar under Section 69(2) of the Partnership Act would not apply. Resultantly, the petition was dismissed. [Hindustan Infrastructure Construction Corpn. Ltd. v. R.S. Woods International Ltd., 2018 SCC OnLine Del 12960, Order dated 13-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur J., dismissed the petition filed under Article 104 of the Constitution of Jammu and Kashmir, and upheld the order passed by the 1st Additional District Judge.

The respondents, in this case, were owners and in possession of the land which was situated in Beli Azmat, Jammu. They agreed to alienate the land, and in furtherance of this, an agreement to sell was entered into. The petitioners contended that despite the said agreement being in force, the respondents did not execute the sale deed, as a result of which a suit for specific performance was filed.

After the order for specific performance was passed, it was challenged by one of the respondents by a suit of declaration. The previous order for specific performance was stayed till the time that the suit for declaration was adjudicated.

Rent was being paid to the respondents by the Department of Agriculture, and the petitioners argued that the same should not be paid till the time the suit for specific performance of the sale deed was settled. The 1st Additional District Judge rejected the argument on the ground that the sale deed was obtained by collusion and that there was no valid document for transfer of title to the petitioners.

Aggrieved by the order, the petitioner filed contempt proceedings, claiming that even though rent was only to be paid to respondent 1 to the extent of his share, yet the rental compensation was being distributed with regard to property. The contempt proceedings were also dismissed by the 1st Additional Judge.

In the present petition, the Court held that the order given did not suffer from any illegality, as whatever rights they claimed were as a result of the suit for specific performance, which had been stayed. Consequently, the petitioners had lost all rights to question the dispensation of rental compensation to the respondents. [Bansi Lal v. Vijay Chand Katoch,2018 SCC OnLine J&K 802, Order dated 03-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjeev Kumar, J. while dealing with a civil revision petition directed against the judgment of trial court passed in relation to Section 9 of the Jammu & Kashmir Specific Relief Act, 1977 declined to interfere with trial court’s judgment directing re-possession in favour of respondent but set aside the order directing payment of mesne profits to the respondent.

Facts of the case are that a shop was purchased by the plaintiff-respondent and since its purchase, the property was in his possession and under his lock and key. In October 2002, the petitioners-defendants broke open the locks of the plaintiff-respondents house, stole all the documents including title deed and also broke open locks of the suit shop and forcibly occupied the same in his absence.

The respondent-plaintiff filed a suit under Section 9 of the Act seeking possession of the suit shop and also for recovery of mesne profits at Rs 2000 per month from the date of illegal occupation of the shop by the petitioners-defendants. After filing of the written statement, petitioner-defendant did not participate in the proceedings and appreciating evidence adduced before the trial court, the court decreed the suit in favour of plaintiff-respondent and also granted the decree for mesne profits at Rs 2000 per month for wrongful use and occupation of the suit property.

The High Court discussed at length, the scope of interference with an order or decree passed in a suit instituted under Section 9 of the Act and held that the inquiry in a suit under Section 9 of the Act is limited to the determination of three questions: (i) if the plaintiff is formally in settled possession, (ii) whether the plaintiff was dispossessed of immovable property without his consent other than in due course of law, and (iii) whether the dispossession has taken place within six months immediately preceding the date of the institution of the suit.

The revision petition was disposed of holding that court cannot interfere with the findings of fact of the trial court by re-appreciating the evidence and as such the re-possession order was upheld. However, it was held that under Section 9 the court did not have jurisdiction to grant mesne profits and as such, trial court’s order to that effect was set aside. [Mohan Lal v Madan Lal,2018 SCC OnLine J&K 642, Order dated 19-09-2018]