4/12/25, 1:43 PM Supreme Court Annual Digest 2023- Code Of Civil Procedure (CPC)

Supreme Court Annual Digest 2023- Code Of Civil Procedure

(CPC)
LIVELAW NEWS NETWORK
1 Jan 2024 2:15 PM
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Code of Civil Procedure, 1908 – Civil Trial - Fixing of the date of trial shall be in
consultation with the learned advocates appearing for the parties to enable them
to adjust their calendar. Once the date of trial is fixed, the trial should proceed
accordingly to the extent possible, on day-to-day basis. (Para 2 (v)) Yashpal Jain v.
Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 – Civil Trial - Trial judges of District and Taluka Courts
shall as far as possible maintain the diary for ensuring that only such number of
cases as can be handled on any given day for trial and complete the recording of
evidence so as to avoid overcrowding of the cases and as a sequence of it would

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result in adjournment being sought and thereby preventing any inconvenience

being caused to the stakeholders. (Para 2 (vi)) Yashpal Jain v. Sushila Devi, 2023
LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 - Delay in civil trial - The statistics relating to the
cases pending in each court beyond 5 years shall be forwarded by every presiding
officer to the Principal District Judge once in a month who (Principal District
Judge/District Judge) shall collate the same and forward it to the review committee
constituted by the respective High Courts for enabling it to take further
steps. (Para 2 (x)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC
948

Code of Civil Procedure, 1908 - Delay in civil trial - The Committee so constituted
by the Hon'ble Chief Justice of the respective States shall meet at least once in two
months and direct such corrective measures to be taken by concerned court as
deemed fit and shall also monitor the old cases (preferably which are pending for
more than 05 years) constantly. (Para 2 (xii)) Yashpal Jain v. Sushila Devi, 2023
LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908 - Suit for Declaration - In a dispute with respect to
determination of title, merely pointing out the lacunae in the defendant's title
would not suffice. Having instituted the suit for declaration, the burden of proof
rested on the shoulders of the plaintiff to reasonably establish the probability of
better title, which the plaintiff in the present case, has manifestly failed to do. (Para
22) P. Kishore Kumar v. Vittal K. Patkar, 2023 LiveLaw (SC) 999 : 2023 INSC 1009

Code of Civil Procedure, 1908 - Suit for Declaration - Revenue records are not
documents of title. The Trial Court erred in decreeing the suit by placing on a
higher probative pedestal the revenue entries. (Para 11 - 27) P. Kishore Kumar v.
Vittal K. Patkar, 2023 LiveLaw (SC) 999 : 2023 INSC 1009

Code of Civil Procedure, 1908 - there is no difference between a party to a suit as a

witness and a witness simpliciter - Production of documents for both a party to the
suit and a witness as the case may be, at the stage of cross-examination, is
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permissible within law. (Para 32) Mohammed Abdul Wahid v. Nilofer, 2023 LiveLaw
(SC) 1061 : 2023 INSC 1075

Section 2 (11) - 'legal representative'

Code of Civil Procedure, 1908; Section 2 (11) - 'legal representative' - On the death
of a party to the suit it is the legal representative who is/are entitled to prosecute
the proceedings and, in law, represent the estate of the deceased. The legal
representative who is brought on record not only includes a legatee under a Will
but also an intermeddler of the property who would be entitled to sue and to be
sued and/or continue to prosecute the proceedings. (Para 3) Yashpal Jain v. Sushila
Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Section 10 - Stay of Suit

Code of Civil Procedure, 1908; Section 10 - Stay of Suit - By virtue of Section 10 CPC,
a Court is prohibited from proceeding with trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit, of
course, subject to other conditions mentioned therein. The object of the
prohibition contained in Section 10 CPC is to prevent the Courts of concurrent
jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent
findings. However, this rule of procedure is held not affecting the jurisdiction of the
Court to entertain and deal with the latter suit and does not create a bar to the
institution of the suit. The Courts have also consistently held that Section 10 CPC
does not create a bar to the passing of interlocutory orders including those of
injunction. (Para 17) State of Meghalaya v. Union of India, 2023 LiveLaw (SC) 427 :
2023 INSC 522

Section 11 - Res Judicata

Code of Civil Procedure, 1908; Section 11 - Res judicata - An order closing the
proceedings is not final decision of the suit within the meaning of Order 9 Rule 8
and Order 17 Rule 3 resply of the CPC - will not operate as res judiciata. (Para
55) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

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Code of Civil Procedure, 1908; Section 11 - Res Judiciata - The general principle of
res judicata under Section 11 of the CPC contain rules of conclusiveness of
judgment, but for res judicata to apply, the matter directly and substantially in
issue in the subsequent suit must be the same matter which was directly and
substantially in issue in the former suit. Further, the suit should have been decided
on merits and the decision should have attained finality. Where the former suit is
dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's
appearance, or on the ground of non-joinder or mis-joinder of parties or
multifariousness, or on the ground that the suit was badly framed, or on the
ground of a technical mistake, or for failure on the part of the plaintiff to produce
probate or letter of administration or succession certificate when the same is
required by law to entitle the plaintiff to a decree, or for failure to furnish security
for costs, or on the ground of improper valuation, or for failure to pay additional
court fee on a plaint which was undervalued, or for want of cause of action, or on
the ground that it is premature and the dismissal is confirmed in appeal (if any),
the decision, not being on the merits, would not be res judicata in a subsequent
suit. (Para 34) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC
317

Code of Civil Procedure 1908; Section 11 - Res Judicata - Guiding principles

summarized. (Para 33) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023
INSC 317

Section 24 - General power of transfer and withdrawal

Code of Civil Procedure, 1908; Section 24, 25 - The power under section 24 of the
CPC can be exercised by the High Court even for inter-State transfer of a suit,
appeal or other proceeding, if it is the common High Court for two or more States
under Article 231 of the Constitution and both the Civil Courts (transferor and
transferee) are subordinate to it - Section 25 applies to inter-State transfer of a suit,
appeal or other proceeding where both States have a High Court in terms of
Article 214 of the Constitution and not to a transfer where both States have a
common High Court under Article 231 thereof. (Para 48) Shah Newaz Khan v. State
of Nagaland, 2023 LiveLaw (SC) 146 : AIR 2023 SC 1338 : 2023 INSC 176

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Code of Civil Procedure, 1908; Section 24 - Transfer Petition - Rejected petitioner's

contention that since all his witnesses are from Siliguri (West Bengal), language
could be a barrier - In a country as diverse as India, it is no doubt true that people
speak different languages. There are at least 22 (twenty-two) official languages.
However, Hindi being the national language, it is expected of the witnesses who
would be produced by the petitioner before the MACT, Fatehgarh, U.P. to
communicate and convey their version in Hindi. If the contention of the petitioner
is to be accepted, it is the claimants who would be seriously prejudiced not being
in a position to communicate and convey their version in Bengali. Pramod Sinha v.
Suresh Singh Chauhan, 2023 LiveLaw (SC) 596

Section 33 - Judgment and decree

Code of Civil Procedure, 1908; Section 33, Order XX Rule 4(2), 5; Order XLI Rule
23, 23A, 24 and 25 - Remand - High Court passed order of remand observing that
the judgment of the trial court was not written as per the mandate of Section 33
and Rule 4(2) and 5 of Order XX of the Code, as the discussion and reasoning on
certain aspects was not detailed and elaborate - Allowing appeal, the Supreme
Court observed: This is not a case where the evidence is not adduced and on
record. In fact, the first portion of the judgment of the High Court elaborately
records the contention of the parties and the facts and evidence relied by the
parties - First appeal restored before High Court. Arvind Kumar Jaiswal v. Devendra
Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Section 47 - Questions to be determined by the Court executing decree

Code of Civil Procedure, 1908; Section 47 - Questions to be determined by the

Court executing decree - Section 47 of CPC confers exclusive jurisdiction on the
Executing Court to prevent unnecessary litigation and to achieve speedy disposal
of the questions arising in relation to the execution, discharge or satisfaction of the
decree. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567 :
2023 INSC 544

Code of Civil Procedure, 1908; Section 47 read with Order XXI - An execution
proceeding works in different stages and if the judgment debtors have failed to
take an objection and have allowed the preliminary stage to come to an end and

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the matter has moved to the next stage, the judgment debtors cannot raise the
objection subsequently, and revert back to an earlier stage of the
proceeding. (Para 7) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936 :
2023 INSC 958

Code of Civil Procedure, 1908; Section 47 read with Order XXI - Executing Court
can only go into questions that are limited to the execution of decree and can
never go behind the decree. (Para 5) Pradeep Mehra v. Harijivan J. Jethwa, 2023
LiveLaw (SC) 936 : 2023 INSC 958

Code of Civil Procedure, 1908; Section 47 read with Order XXI - Executing court
cannot go beyond the decree. As a matter of course, an Executing Court is
enjoined with the duty to give effect to the decree. Any interference, including on
a question involving jurisdiction, should be undertaken very sparsely as a matter of
exception. The onus lies heavily on the judgment-debtor to convince the Court
that a decree is inexecutable. When an exercise is likely to involve a factual
adjudication, it should better be avoided. (Para 14) Mumtaz Yarud Dowla Wakf v.
Badam Balakrishna Hotel Pvt. Ltd., 2023 LiveLaw (SC) 920 : 2023 INSC 949

Code of Civil Procedure, 1908; Section 47 read with Order XXI - Pure civil matters
take a long time to be decided, and regretfully it does not end with a decision, as
execution of a decree is an entirely new phase in the long life of a civil litigation.
The inordinate delay, which is universally caused throughout India in the execution
of a decree, has been a cause of concern with this Court for several years. (Para
6) Pradeep Mehra v. Harijivan J. Jethwa, 2023 LiveLaw (SC) 936 : 2023 INSC 958

Code of Civil Procedure, 1908; Section 47 read with Order XXI - The conduct of a
party assumes significance. If a party is likely to have an undue advantage, despite
the availability of an opportunity to raise a plea of lack of jurisdiction at an earlier
point of time, it should not be permitted to do so during the execution
proceedings. In other words, a plaintiff shall not be made to suffer by the passive
act of the defendant in submitting to the jurisdiction. (Para 15) Mumtaz Yarud
Dowla Wakf v. Badam Balakrishna Hotel Pvt. Ltd., 2023 LiveLaw (SC) 920 : 2023 INSC
949
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Section 89 - Settlement of disputes outside the Court

Code of Civil Procedure, 1908; Section 89 (1) - In the event of the party's failure to
opt for ADR namely resolution of dispute as prescribed under Section 89(1) the
court should frame the issues for its determination within one week preferably, in
the open court. (Para 2 (iv)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 :
2023 INSC 948

Section 96 - Appeal from original decree

Civil Procedure Code, 1908; Sections 96 and 100 - a first appeal and a second
appeal arising out of two proceedings cannot be clubbed and disposed of by a
common judgment even though the parties are essentially the same and the
property in dispute is common. Seethamal v. Narayanasamy, 2023 LiveLaw (SC) 342

Code of Civil Procedure, 1908; Section 96 - Limitation Act, 1963; Section 3, 5 - An

appeal has to be filed within the stipulated period, prescribed under the law.
Belated appeals can only be condoned, when sufficient reason is shown before the
court for the delay. The appellant who seeks condonation of delay therefore must
explain the delay of each day. It is true that the courts should not be pedantic in
their approach while condoning the delay, and explanation of each day's delay
should not be taken literally, but the fact remains that there must be a reasonable
explanation for the delay. (Para 5) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 :
AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023 INSC 90

Code of Civil Procedure, 1908; Section 96 and Order XLI - The court of first appeal
has a duty to record its findings qua all the issues raised before it, and in cases
where the High Court fails to do the same, the matter must be remanded to the
same court again for fresh adjudication. (Para 20-22) Dheeraj Singh v. Greater Noida
Industrial Development Authority, 2023 LiveLaw (SC) 493 : 2023 INSC 594 : AIR 2023
SC 3110

Code of Civil Procedure, 1908; Section 96, 149 - Limitation Act, 1963; Section 3, 5
- Being short of sufficient funds to pay court fee is not a reason to condone delay
in filing appeal - In such a scenario, an appeal can be filed in terms of Section 149

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CPC and thereafter the defects can be removed by paying deficit court fees. (Para
5-10) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1
SCR 449 : 2023 INSC 90

Section 100 - Second Appeal

Code of Civil Procedure, 1908; Section 100 - A Court sitting in second appellate
jurisdiction is to frame substantial question of law at the time of admission, save
and except in exceptional circumstances. Post such framing of questions the Court
shall proceed to hear the parties on such questions, i.e., after giving them
adequate time to meet and address them. It is only after such hearing subsequent
to the framing that a second appeal shall come to be decided. (Para 27.1) Suresh
Lataruji Ramteke v. Sumanbai Pandurang Petkar, 2023 LiveLaw (SC) 821 : 2023 INSC
846 : AIR 2023 SC 4794

Code of Civil Procedure, 1908; Section 100 - In ordinary course, the High Court in
such jurisdiction does not interfere with finding of fact, however, if it does find any
compelling reason to do so as regard in law, it can do but only after perusing the
records of the Trial Court, on analysis of which the conclusion arrived at by such a
Court is sought to be upturned. In other words, when overturning findings of fact,
the Court will be required to call for the records of the Trial Court or if placed on
record, peruse the same and only then question the veracity of the conclusions
drawn by the Court below. (Para 27.2) Suresh Lataruji Ramteke v. Sumanbai
Pandurang Petkar, 2023 LiveLaw (SC) 821 : 2023 INSC 846 : AIR 2023 SC 4794

Code of Civil Procedure, 1908; Section 100 - Second appeal can be entertained by
the High Court only if the case involves a 'substantial question of law'. (Para 12 –
14) Appaiya v. Andimuthu @ Thangapandi, 2023 LiveLaw (SC) 811 : 2023 INSC 835 :
AIR 2023 SC 4810

Code of Civil Procedure, 1908; Section 100 - Punjab Courts Act, 1918; Section 41 - In
appeals arising out of the state of Punjab or the State of Haryana, courts are not
required to frame substantial questions of law as per section 100 of CPC. (Para 8,
9) Gurbachan Singh v. Gurcharan Singh, 2023 LiveLaw (SC) 562 : 2023 INSC 639

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Code of Civil Procedure, 1908; Section 100 - The parameters of an appeal under
Section 100, CPC - Ordinarily, in a second appeal, the court must not disturb facts
established by the lower court or the first appellate court. However, this rule is not
an absolute one or in other words, it is not a rule set in stone - Where the court is
of the view that the conclusions drawn by the court below do not have a basis in
the evidence led or it is of the view that the appreciation of evidence “suffers from
material irregularity” the court will be justified in interfering with such finding.
(Para 14, 15) Gurbachan Singh v. Gurcharan Singh, 2023 LiveLaw (SC) 562 : 2023
INSC 639

Code of Civil Procedure, 1908; Section 100 - High Court cannot admit regular
second appeal without framing substantial questions of law. Bhagyashree Anant
Gaonkar v. Narendra@ Nagesh Bharma Holkar, 2023 LiveLaw (SC) 688

Section 114 - Review

Code of Civil Procedure, 1908; Section 114; Order XLVII Rule 1 - Supreme Court
Rules, 2013; Order XLVII of Part IV - An error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be an error apparent
on the face of record - An error on the face of record must be such an error which,
mere looking at the record should strike and it should not require any long-drawn
process of reasoning on the points where there may conceivably be two
opinions. (Para 9-15) Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2023
LiveLaw (SC) 506 : 2023 INSC 610 : AIR 2023 SC 3845 : (2023) 8 SCC 11

Section 115 - Revision

Code of Civil Procedure, 1908; Section 115 - Where an appealable decree has been
passed in a suit, no revision should be entertained under Section 115 of the CPC
against an order rejecting on merits a review of that decree. The proper remedy for
the party whose application for review of an appealable decree has been rejected
on merits is to file an appeal against that decree and if, in the meantime, the
appeal is rendered barred by time, the time spent in diligently pursuing the review
application can be condoned by the Court to which an appeal is filed. (Para
28) Rahimal Bathu v. Ashiyal Beevi, 2023 LiveLaw (SC) 829 : 2023 INSC 861

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Section 149 - Power to make up deficiency of court-fees

Code of Civil Procedure, 1908; Section 149 - Court Fees Act 1870; Section 4 - Section
149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act - In
terms of Section 4, an appeal cannot be filed before a High Court without court
fee, if the same is prescribed - But an appeal can be filed in terms of Section 149
CPC and thereafter the defects can be removed by paying deficit court fees. Ajay
Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449 :
2023 INSC 90

Order 2 Rule 2 - Suit to include the whole claim

Civil Procedure Code, 1908; Order II Rule 2 - A suit for possession and suit for
claiming damages for use and occupation of the property are two different causes
of action. Hence, second suit filed claiming damages for use and occupation of the
premises was maintainable after a suit for possession. (Para 17) Bharat Petroleum
Corporation Ltd v. ATM Constructions Pvt Ltd., 2023 LiveLaw (SC) 1031 : 2023 INSC
1042

Order 5 Rule 2 - Copy of plaint annexed to summons

Code of Civil Procedure, 1908; Order V Rule 2 - Service contemplated in terms of

Order V Rule 2 of the Code would imply service of summons along with the copy
of the plaint. National Insurance Company Ltd. v. National Building Construction
India Ltd; 2023 LiveLaw (SC) 800

Code of Civil Procedure, 1908; Order V Rule 2 - All courts at district and taluka
levels shall ensure proper execution of the summons and in a time bound manner
as prescribed under Order V Rule (2) of CPC and same shall be monitored by
Principal District Judges and after collating the statistics they shall forward the
same to be placed before the committee constituted by the High Court for its
consideration and monitoring. (Para 2 (i)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw
(SC) 916 : 2023 INSC 948

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Order 6 Rule 4 - Particulars to be given where necessary

Code of Civil Procedure, 1908; Order VI Rule 4, Order XXI Rules 97 to

101 - Hyderabad Jagir Abolition Regulation, 1358 - The Supreme Court has upheld
the decision of the Telangana High Court, upholding the title of successors of Ryot
Cultivators over the Paigah lands in Hydernagar, Telangana, who had obtained title
to the said lands from their predecessors. The court dismissed the claim of title
raised by rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the
ground that it was a Mathruka property of the late Nawab Khurshid Jah, who was
granted a Paigah by the Nizam of Hyderabad. The Apex Court further ruled that no
party to a suit for partition, even by way of compromise, can acquire any title to
any specific item of property or any particular portion of a specific property, if such
a compromise is struck only with a few parties to the suit. Trinity Infraventures Ltd.
v. M.S. Murthy, 2023 LiveLaw (SC) 488 : 2023 INSC 581

Order 6 Rule 17 - Amendment of Pleadings.

Code of Civil Procedure 1908; Order VI Rule 17 - In dealing with prayers for
amendment of the pleadings the Courts should avoid hyper technical approach.
But at the same time, we should keep reminded of the position that the same
cannot be granted on the mere request through an application for amendment of
the written statement, especially at the appellate stage. (Para 14) Shivashankara v.
H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

Code of Civil Procedure, 1908; Order VI Rule 17 - Inconsistent and contradictory

allegations in negation to the admitted position of facts or mutually destructive
allegations of facts should not be allowed to be incorporated by means of
amendment to the pleadings. (Para 38) Ganesh Prasad v. Rajeshwar Prasad, 2023
LiveLaw (SC) 189 : 2023 INSC 228

Order 7 Rule 11 - Rejection of plaint

Code of Civil Procedure, 1908; Order VII Rule 11 - A plaint which falls within the
teeth of the conditions laid down under Rule 11 of Order VII CPC is liable to be
rejected at the threshold for which the plaint allegations alone are required to be
considered and nothing else. (Para 12) ESSEMM Logistics v. DARCL Logistics
Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

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Code of Civil Procedure, 1908; Order VII Rule 11 - For dealing with an application
under Rule 11 of Order VII of CPC, only the averments made in the plaint and the
documents produced along with the plaint are required to be seen. The defence of
the defendants cannot be even looked into. When the ground pleaded for
rejection of the plaint is the absence of cause of action, the Court has to examine
the plaint and see whether any cause of action has been disclosed in the plaint -
Merely because there were some inconsistent averments in the plaint, that was not
sufficient to come to a conclusion that the cause of action was not disclosed in the
plaint. The question was whether the plaint discloses the cause of action. (Para 6-
9) G. Nagaraj v. B.P. Mruthunjayanna, 2023 LiveLaw (SC) 311

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - Plaint
cannot be rejected in part. (Para 11) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC)
940 : 2023 INSC 964

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - the true test
is first to read the plaint meaningfully and as a whole, taking it to be true. Upon
such reading, if the plaint discloses a cause of action, then the application under
Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not
disclose a cause of action, the plaint shall be rejected. (Para 7) Geetha v.
Nanjundaswamy, 2023 LiveLaw (SC) 940 : 2023 INSC 964

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - The High
Court committed an error by examining the merits of the matter. It pre-judged the
truth, legality and validity of the sale deed under which the Defendants claim title.
The approach adopted by the High Court is incorrect and contrary to the well-
entrenched principles of considering an application under Order VII Rule 11, CPC.
(Para 10) Geetha v. Nanjundaswamy, 2023 LiveLaw (SC) 940 : 2023 INSC 964

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint and Res
judicata - As far as scope of Rule 11 of Order VII of CPC is concerned, the Court
can look into only the averments made in the plaint and at the highest, documents
produced along with the plaint. The defence of a defendant and documents relied
upon by him cannot be looked into while deciding such application. Hence, the
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issue of res judicata could not have been decided on an application under Rule 11
of Order VII of CPC. The reason is that the adjudication on the issue involves
consideration of the pleadings in the earlier suit, the judgment of the Trial Court
and the judgment of the Appellate Courts. (Para 5 & 6) Keshav Sood v. Kirti Pradeep
Sood, 2023 LiveLaw (SC) 799

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - While
deciding the application under Order VII Rule XI, mainly the averments in the
plaint only are required to be considered and not the averments in the written
statement - Plaint is ought to be rejected when it is vexatious, illusory cause of
action and barred by limitation and it is a clear case of clever drafting. (Para 5-
8) Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372 : 2023 INSC
458

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - No amount
of evidence or merits of the controversy can be examined at the stage of decision
of the application under Order VII Rule 11 C.P.C. (Para 26) Eldeco Housing and
Industries Ltd. v. Ashok Vidyarthi, 2023 LiveLaw (SC) 1033 : 2023 INSC 1043

Code of Civil Procedure, 1908; Order VII Rule 11 - Whether an appropriate prayer
should have sought, is a matter ultimately to be decided in the suit and not an
issue to be considered while deciding the application under Order VII Rule 11 of
CPC. (Para 5) Sajjan Singh v. Jasvir Kaur, 2023 LiveLaw (SC) 517

Code of Civil Procedure, 1908; Order VII Rule 11, Order XII Rule 6 - Rejection of
Election Petition - Judgement on Admissions - A plain look at the election petition
reveals that apart from allegations pertaining to non-disclosure of criminal cases
pending against the appellant, or cases where he was convicted, other averments
and allegations have been made regarding non-compliance with stipulations
regarding information dissemination and the manner of dissemination through
publication in newspapers, the font size, the concerned newspapers' reach
amongst the populace, etc. The alleged noncompliance with statutory and Election
Commission mandated regulations, and their legal effect, cannot be examined in
what are essentially summary proceedings under Order VII Rule 11, CPC, or even
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under Order XII Rule 6, CPC. Even if the allegations regarding non-disclosure of
cases where the appellant has been arrayed as an accused, are ultimately true, the
effect of such allegations (in the context of provisions of law and the non-
disclosure of all other particulars mandated by the Election Symbols orders) has to
be considered after a full trial. The admission of certain facts (and not all) by the
election petitioner cannot be sufficient for the court to reject the petition, wholly.
Even in respect of the undeniable nature of the judicial record, the effect of its
content is wholly inadequate to draw a decree in part. (Para 26) Bhim Rao
Baswanth Rao Patil v. K. Madan Mohan Rao, 2023 LiveLaw (SC) 563 : 2023 INSC 641
: AIR 2023 SC 3574

Order 7 Rule 14 - Production of documents

Code of Civil Procedure, 1908 - Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and
Order XIII Rule 1(3), all three of which, while dealing with the production of
documents, by the plaintiff, defendant and in general, respectively, exempt
documents to be produced for the limited purpose of cross-examination or
jogging the memory of the witness. (Para 31) Mohammed Abdul Wahid v.
Nilofer, 2023 LiveLaw (SC) 1061 : 2023 INSC 1075

Code of Civil Procedure, 1908; Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and
Order XIII Rule 1(3) - Documents can be produced during cross-examination in
civil trial to confront party to suit or witness. Save and except the cross-
examination part of a civil suit, at no other point shall such confrontation be
allowed, without such document having accompanied the plaint or written
statement filed before the court. (Para 31) Mohammed Abdul Wahid v. Nilofer, 2023
LiveLaw (SC) 1061 : 2023 INSC 1075

Order 8 Rule 1 - Written Statement

Code of Civil Procedure, 1908; Section VIII Rule 1 - All courts at District and Taluka
level shall ensure that written statement is filed within the prescribed limit namely
as prescribed under Order VIII Rule 1 and preferably within 30 days and to assign
reasons in writing as to why the time limit is being extended beyond 30 days as
indicated under proviso to sub-Rule (1) of Order VIII of CPC. (Para 2 (ii)) Yashpal
Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

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Order 8 Rule 6A - Counter-claim by defendant

Code of Civil Procedure, 1908; Order VIII Rule 6A - An inter-se dispute on the
validity of the sale deed executed between the defendants in respect of the suit
land, cannot be considered in the suit for possession instituted by the plaintiff on
the basis of a registered sale deed executed in its favour, as it would amount to
adjudication of a right or a claim by way of counter-claim by one defendant
against his co-defendant, which cannot be permitted by virtue of Order VIII Rule
6A of CPC. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw
(SC) 404 : 2023 INSC 491

Code of Civil Procedure, 1908; Order VIII Rule 6–A (4) - A counter-claim is a
virtually a plaint and an independent suit. (Para 12) ESSEMM Logistics v. DARCL
Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

Order 9 - Appearance of Parties and Consequence of non-Appearance

Code of Civil Procedure, 1908; Order IX - When the defendant counsel had
withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued
notice to the defendants to engage another counsel. (Para 21) Y.P. Lele v.
Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 :
2023 INSC 732 : AIR 2023 SC 3832

Order 9 Rule 9 - Decree against plaintiff by default bars fresh suit.

Code of Civil Procedure, 1908; Order IX Rule 9 - If the right of redemption is not
extinguished, the provision like Order IX Rule 9 of the CPC will not debar the
mortgagor from filing a second suit because as in a partition suit, the cause of
action in a redemption suit is a recurring one. The cause of action in each
successive action, until the right of redemption is extinguished or a suit for
redemption is time barred, is a different one. (Para 61, 62) Ganesh Prasad v.
Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Code of Civil Procedure, 1908; Order 9 Rule 9 - It was not the intention of the
Legislature to bar the subsequent suits between the parties and the same was
evident by the qualifying words, “same cause of action”. Therefore, everything
depends upon the cause of action and in case the subsequent cause of action

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arose from a totally different bunch of facts, such suit cannot be axed by taking
shelter to the provision of Order IX Rule 9 of CPC. (Para 52) Ganesh Prasad v.
Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Order 9 Rule 13 - Setting aside Decree ex parte

Code of Civil Procedure, 1908; Order IX Rule 13 and Section 92 (2) - Ex-parte
decree - As against the ex-parte decree, a defendant has three remedies available
to him. First, is by way of filing an application under Order IX Rule 13 CPC seeking
for setting aside ex-parte decree; the second, is by way of filing an appeal against
the ex-parte decree under Section 96(2) of the CPC and the third, is by way of
review before the same court against the ex-parte decree. (Para 12) Koushik
Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC)
1056 : 2023 INSC 1065

Code of Civil Procedure, 1908; Order IX Rule 13 and Section 92 (2) - Ex-parte
decree - The filing of an application under Order IX Rule 13 CPC as well as the
filing of appeal under Section 96(2) of the CPC against the ex-parte decree are
concurrent remedies available to a defendant. However, once the appeal preferred
by the defendant against the ex-parte decree is dismissed, except when it is
withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued.
Conversely, if an application filed under Order IX Rule 13 CPC is rejected, an appeal
as against the ex-parte decree can be preferred and continued under Section 96(2)
of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of
an application under Order IX Rule 13 CPC is maintainable. (Para 13) Koushik
Mutually Aided Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC)
1056 : 2023 INSC 1065

Code of Civil Procedure, 1908; Order IX Rule 13 and Order XLIII Rule 1(d) - Ex-
parte decree - Against the order passed under Order IX Rule 13 CPC rejecting an
application for seeking setting aside the decree passed exparte, an appeal is
provided. When an application is filed seeking condonation of delay for seeking
setting aside an ex-parte decree and the same is dismissed and consequently, the
petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is
maintainable. Thus, an appeal only against the refusal to set aside the ex-parte

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decree is maintainable whereas if an order allowing such an application is passed,

the same is not appealable. (Para 15) Koushik Mutually Aided Cooperative Housing
Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

Code of Civil Procedure, 1908; Order IX Rule 13, Order XLIII Rule 1 and Section
115 - Ex-parte decree - Appeal from orders and Revision – When an application or
petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a
remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil
Revision Petition under Section 115 of the CPC would not arise when an
application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an
alternative and effective appellate remedy is available to a defendant, against an
ex-parte decree, it would not be appropriate for the defendant to resort to filing of
revision under Section 115 of the CPC challenging the order refusing to set aside
the order of setting the defendant ex-parte. In view of the appellate remedy under
Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC
filed in the instant case was not maintainable. (Para 16) Koushik Mutually Aided
Cooperative Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC
1065

Order 10 - Examination of Parties by the Court

Code of Civil Procedure, 1908; Order X and Section 89 (1) - All courts at Districts
and Talukas shall ensure after the pleadings are complete, the parties should be
called upon to appear on the day fixed as indicated in Order X and record the
admissions and denials and the court shall direct the parties to the suit to opt for
either mode of the settlement outside the court as specified in sub-Section (1) of
Section 89 and at the option of the parties shall fix the date of appearance before
such forum or authority and in the event of the parties opting to any one of the
modes of settlement directions be issued to appear on the date, time and venue
fixed and the parties shall so appear before such authority/forum without any
further notice at such designated place and time and it shall also be made clear in
the reference order that trial is fixed beyond the period of two months making it
clear that in the event of ADR not being fruitful, the trial would commence on the
next day so fixed and would proceed on day-to-day basis. (Para 2 (iii)) Yashpal Jain
v. Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

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Order 11 - Discovery and Inspection, Admissions

Code of Civil Procedure, 1908; Order XI and XII - The counsels representing the
parties may be enlightened of the provisions of Order XI and Order XII so as to
narrow down the scope of dispute and it would be also the onerous responsibility
of the Bar Associations and Bar Councils to have periodical refresher courses and
preferably by virtual mode. (Para 2 (vii)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw
(SC) 916 : 2023 INSC 948

Order 17 Rule 1 - Adjournment

Code of Civil Procedure, 1908; Order XVII Rule 1 - The trial courts shall
scrupulously, meticulously and without fail comply with the provisions of Rule 1 of
Order XVII and once the trial has commenced it shall be proceeded from day to
day as contemplated under the proviso to Rule (2). (Para 2 (viii)) Yashpal Jain v.
Sushila Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Code of Civil Procedure, 1908; Order XVII Rule 1 - Costs of Adjournment - The
courts shall give meaningful effect to the provisions for payment of cost for
ensuring that no adjournment is sought for procrastination of the litigation and
the opposite party is suitably compensated in the event of such adjournment is
being granted. (Para 2 (ix)) Yashpal Jain v. Sushila Devi, 2023 LiveLaw (SC) 916 :
2023 INSC 948

Order 17 Rule 2 - Procedure if parties fail to appear on day fixed.

Code of Civil Procedure, 1908; Order XVII Rule 2 - Any party” refers to the party
which has led evidence or substantial evidence and “such party” refers to that very
party which has led evidence or substantial evidence - Under Order XVII Rule 2, the
Court would proceed to pass orders with respect to any of the parties being
absent or both the parties being absent. Whereas the explanation is confined to
record the presence of that party and that party alone, which has led evidence or
substantial evidence and has thereafter failed to appear. (Para 19) Y.P. Lele v.
Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 :
2023 INSC 732 : AIR 2023 SC 3832

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Order 17 Rule 3 - Court may proceed notwithstanding either party fails to produce
evidence, etc.

Code of Civil Procedure, 1908; Order 17 Rule 3 - The power conferred on Courts
under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default
of a party is a drastic power which seriously restricts the remedy of the
unsuccessful party for redress. It has to be used only sparingly in exceptional cases.
Physical presence without preparedness to co-operate for anything connected with
the progress of the case serves no useful purpose in deciding the suit on the
merits and it is worse than absence. There must be some materials for a decision
on the merits, even though the materials may not be technically interpreted as
evidence. Sometimes the decision in such cases. (Para 52) Prem Kishore v. Brahm
Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Order 20 - Judgment and Decree

Code of Civil Procedure, 1908; Order XX - At conclusion of trial the oral arguments
shall be heard immediately and continuously and judgment be pronounced within
the period stipulated under Order XX of CPC. (Para 2 (ix)) Yashpal Jain v. Sushila
Devi, 2023 LiveLaw (SC) 916 : 2023 INSC 948

Order 20 Rule 18 - Decree in suit for partition of property or separate possession of a

share therein

Code of Civil Procedure, 1908; Order XX Rule 18 - Punjab Land Revenue Act, 1887;
Section 121 - Instrument of Partition - For the purpose of interpreting Section 121
of the Land Revenue Act, the Court can safely draw an analogy from the provisions
contained in Order XX, Rule 18 C.P.C. which pertain to the procedure to be
followed on the passing of the decree for the partition of the property. (Para
28) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074 : 2023
INSC 373

Code of Civil Procedure, 1908; Order XX Rule 18 - Punjab Land Revenue Act, 1887;
Section 121 - When a decision is taken by the Revenue Officer under Section 118
on the question as to the property to be divided and the mode of partition, the
rights and status of the parties stand decided and the partition is deemed to have

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completed. At this stage, such decision is required to be treated as the

“decree”. (Para 30) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023
SC 2074 : 2023 INSC 373

Order 21 - Execution of Decrees and Orders

Code of Civil Procedure, 1908; Order XXI - Liability to pay interest on money
deposited by judgment debtor-f the amount is deposited, or paid to the decree
holder or person entitled to it, the person entitled to the amount cannot later seek
interest on it-This is a rule of prudence, inasmuch as the debtor, or person required
to pay or refund the amount, is under an obligation to ensure that the amount
payable is placed at the disposal of the person entitled to receive it. Once that is
complete (in the form of payment, through different modes, including tendering a
Banker's Cheque, or Pay Order or Demand Draft, all of which require the account
holder / debtor to pay the bank, which would then issue the instrument) the
tender, or 'payment' is complete. (Para 31) K.L. Suneja v. Manjeet Kaur Monga, 2023
LiveLaw (SC) 68 : AIR 2023 SC 705 : 2023 INSC 89

Order 21 Rule 32 - Decree for specific performance for restitution of conjugal rights, or for
an injunction.

Code of Civil Procedure, 1908; Order XXI Rule 32 - It cannot be said that
nonparticipation in a proceeding of a restitution of conjugal rights is absolutely
impactless. In fact, it has civil consequences - Transfer petition filed by wife
allowed. Poonam Anjur Pawar vs Ankur Ashokbhai Pawar, 2023 LiveLaw (SC) 579

Order 21 Rule 84 - Deposit by purchaser and re-sale on default

Code of Civil Procedure, 1908; Order XXI Rule 84, 85 - The deposit of 25% of the
amount by the purchaser other than the decree-holder is mandatory and the full
amount of the purchase money must be paid within fifteen days from the date of
the sale - If the payment is not made within the period of fifteen days, the Court
has the discretion to forfeit the deposit, and there the discretion ends but the
obligation of the Court to resell the property is imperative - The provisions of the
rules requiring the deposit of 25 per cent of the purchase money immediately, on
the person being declared as a purchaser and the payment of the balance within
15 days of the sale are mandatory and upon noncompliance with these provisions
there is no sale at all. The rules do not contemplate that there can be any sale in
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favour of a purchaser without depositing 25 per cent of the purchase money in the
first instance and the balance within 15 days. When there is no sale within the
contemplation of these rules, there can be no question of material irregularity in
the conduct of the sale. Non-payment of the price on the part of the defaulting
purchaser renders the sale proceedings as a complete nullity. (Para 8-9) Gas Point
Petroleum India Ltd. v. Rajendra Marothi, 2023 LiveLaw (SC) 89 : AIR 2023 SC 833 :
(2023) 3 SCC 629 : (2023) 2 SCR 326 : 2023 INSC 119

Order 21 Rules 97 - Resistance or obstruction to possession of immovable property

Code of Civil Procedure, 1908; Order XXI Rules 97 to 101 - Executing Court cannot
dismiss an execution petition against the judgment-debtor by treating the decree
for possession as inexecutable, merely on the basis that the decree-holder has lost
possession of the immovable property to a third party/encroacher. It was the duty
of the Executing Court to issue warrant of possession for effecting physical delivery
of the suit land to the decree-holder. Further, if any resistance is offered by any
stranger/ encroacher to the decree, the same has to be adjudicated upon by the
Executing Court in accordance with Rules 97 to 101 of Order XXI CPC. Unless this
procedure is adopted, the Executing Court could not have closed the execution
proceedings by observing that the decree is inexecutable. (Para 15) Ved Kumari v.
Municipal Corporation of Delhi, 2023 LiveLaw (SC) 712 : 2023 INSC 764 : AIR 2023
SC 4155

Order 21 Rule 102 - Rules not applicable to transferee pendente lite

Code of Civil Procedure, 1908; Order XXI Rule 102 - the Executing Court would
have to determine upon evidence whether the transfer of immovable property
which was made post dismissal of suit, was made after institution of appeal/further
litigation or not, in order to attract the principle of lis pendens. Jini Dhanrajgir v.
Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567 : 2023 INSC 544

Order 22 Rule 2 - Procedure where one of several plaintiffs or defendants dies and right to
sue survives.

Code of Civil Procedure, 1908; Order XXII Rule 2 - Suit can't be held to be abated
in the event of death of one of the defendants, when the estate/interest was being
fully and substantially represented in the suit jointly by the other defendants along
with deceased defendant and when they are also his legal representatives - In such
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cases, by reason of non-impleadment of all other legal heirs consequential to the

death of the said defendant, the defendants could not be heard to contend that
the suit should stand abated on account of non-substitution of all the other legal
representatives of the deceased defendant. (Para 36) Shivashankara v. H.P.
Vedavyasa Char, 2023 LiveLaw (SC) 261

Order 22 Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff.

Code of Civil Procedure, 1908; Order XXII Rule 3 – Advocate appearing for the
Defendant could have signed the compromise petition without an express consent.
It is an imperative duty of the Court to ascertain the genuineness and lawfulness of
the compromise deed. (Para 100) Prasanta Kumar Sahoo v. Charulata Sahu, 2023
LiveLaw (SC) 262 : 2023 INSC 319

Code of Civil Procedure, 1908; Order XXII Rule 3 - When a claim in suit has been
adjusted wholly or in part by any lawful agreement or compromise, the
compromise must be in writing and signed by the parties and there must be a
completed agreement between them-. In a suit for partition of joint property, a
decree by consent amongst some only of the parties cannot be maintained. (Para
93, 94) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262 : 2023 INSC
319

Order 23 Rule 1 - Withdrawal of suit or abandonment of part of claim.

Code of Civil Procedure, 1908; Order 23 Rule 1 - A writ petition, filed pursuant to
withdrawal of a civil suit for the same relief when liberty is not granted to file
afresh, is not maintainable. The principles of constructive res judicata laid down in
Order 23 Rule 1 CPC would also apply to writ proceedings. (Para 38) State of Orissa
v. Laxmi Narayan Das, 2023 LiveLaw (SC) 527 : 2023 INSC 619 : AIR 2023 SC 3425

Order 26 Rule 10 - Procedure of Commissioner

Code of Civil Procedure, 1908; Order XXVI Rule 10 - Procedure of Commissioner -

In terms of Order XXVI Rule 10, the Commissioner has to submit a report in writing
to the court. The report of the Commissioner and the evidence taken by him
constitute evidence in the suit and form a part of the record. However, the court
and, with its permission, any of the parties may examine the Commissioner

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personally in open court touching any of the matters referred to him or mentioned
in the report or as regards the report including the manner in which the
investigation has been made. The court is also empowered to direct such further
inquiry if it is dissatisfied with the proceedings of the Commissioner. The
evidentiary value of any report of the Commissioner is a matter to be tested in the
suit and is open to objections including cross-examination. A report of the
Commissioner does not by and of itself amount to a substantive finding on
matters in dispute and is subject to the process of the court during the course of
the trial. (Para 14) Committee of Management Anjuman Intezemia Masajid Varanasi v.
Rakhi Singh, 2023 LiveLaw (SC) 634 : 2023 INSC 702

Order 41 Rule 5 - Stay by Appellate Court. Stay by Court which passed the decree.

Code of Civil Procedure, 1908; Order 41 Rule 5 - Unless the appeal is listed and
there is an interim order, the mere filing of the appeal would not operate as a
stay. Sanjiv Kumar Singh v. State of Bihar, 2023 LiveLaw (SC) 63

Order 41 Rule 17 - Dismissal of appeal for appellant's default

Civil Procedure Code, 1908; Order XLI Rule 17 - If the appellant does not appear
when the appeal is called for a hearing, then the same can be dismissed for non-
prosecution and not on merits. Benny Dsouza v. Melwin Dsouza, 2023 LiveLaw (SC)
1032

Order 41 Rule 22 - Upon hearing respondent may object to decree as if he had preferred a
separate appeal.

Code of Civil Procedure, 1908; Order XLI Rule 22 - In cases where the decree
passed by the court of first instance is in favor of the respondent in whole, in such
circumstance, no remedy exists in favour of the respondent to appeal such decree,
since no right to appeal can be vested onto a party, which is successful. However,
in cases where the decree given by the court of first instance, is partly in favour of
the respondent, but is also partly against the respondent, two remedies within
Order 41 Rule 22 remain with the respondent, which are (i) To file their cross
objections and, (ii) To support the decree in whole. A third remedy in law also
exists, which is the right to file a cross appeal, which will also be discussed in brief -
In cases where the opposing party files a first appeal against part or whole of the
original decree, and the respondent in the said first appeal, due to part or whole of
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the decree being in their favour, abstains from filing an appeal at the first instance,
in such cases, to ensure that the respondent is also given a fair chance to be heard,
he is given the right to file his cross objections within the appeal already so
instituted by the other party, against not only the contentions raised by the other
party, but also against part or whole of the decree passed by the court of first
instance - In a similar circumstance, where the other party in the first instance has
preferred an appeal, apart from the remedy of cross objections, the respondent
can also file a cross appeal within the limitation period so prescribed, which in
essence is a separate appeal in itself, challenging part or whole of the original
decree, independent of the appeal filed by the other party. The respondent also
has the right to fully support the original decree passed by the lower court in full.
(Para 12-16) Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023
LiveLaw (SC) 493 : 2023 INSC 594

Code of Civil Procedure, 1908; Order XLI Rule 22 - While cross objections, unlike a
regular appeal, are filed within an already existing appeal, however, as per Order 41
Rule 22 of the CPC, cross objections have all the trappings of a regular appeal, and
therefore, must be considered in full by the court adjudicating upon the same.
(Para 17) Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023
LiveLaw (SC) 493 : 2023 INSC 594

Order 41 Rule 23 - Remand of case by Appellate Court.

Code of Civil Procedure, 1908; Order 41 Rule 23 - the scope of remand in terms of
Rule 23 of Order XLI CPC is extremely limited. (Para 11.2) Sirajudheen v.
Zeenath, 2023 LiveLaw (SC) 145 : 2023 INSC 173

Code of Civil Procedure, 1908; Order 41 Rule 23 - There can be no doubt with
respect to the settled position that the Court to which the case is remanded has to
comply with the order of remand and acting contrary to the order of remand is
contrary to law. In other words, an order of remand has to be followed in its true
spirit. (Para 7) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261

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Code of Civil Procedure, 1908; Order 41 Rule 23, 23A, 24 and 25 - Remand - An
order of remand prolongs and delays the litigation and hence, should not be
passed unless the appellate court finds that a re-trial is required, or the evidence
on record is not sufficient to dispose of the matter for reasons like lack of
adequate opportunity of leading evidence to a party, where there had been no real
trial of the dispute or there is no complete or effectual adjudication of the
proceedings, and the party complaining has suffered material prejudice on that
account. Where evidence has already been adduced and a decision can be
rendered on appreciation of such evidence, an order of remand should not be
passed remitting the matter to the lower court, even if the lower court has omitted
to frame issue(s) and/or has failed to determine any question of fact, which, in the
opinion of the appellate court, is essential. The first appellate court, if required, can
also direct the trial court to record evidence and finding on a particular
aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record
for deciding the case by the appellate court. Arvind Kumar Jaiswal v. Devendra
Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Order 41 Rule 23A - Remand in other cases

Code of Civil Procedure 1908; Order 41 Rule 23A - Necessary requirement for
remand under Rule 23A is that the decree is reversed in appeal and a re-trial is
considered necessary - the reversal has to be based on cogent reasons and for
that matter, adverting to and dealing with the reasons that had prevailed with the
Trial Court remains a sine qua non. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw
(SC) 145 : 2023 INSC 173

Order 43 Rule 1 - Appeals from orders.

Code of Civil Procedure, 1908; Order XLIII Rule 1(d) and Section 115 - Appeal from
orders and Revision – When there is an express provision available under the CPC
or any statute under which an appeal is maintainable, by-passing the same, a
Revision Petition cannot be filed. (Para 17) Koushik Mutually Aided Cooperative
Housing Society v. Ameena Begum, 2023 LiveLaw (SC) 1056 : 2023 INSC 1065

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Order 47 Rule 1 - Application for review of judgment.

Code of Civil Procedure, 1908; Order 47 Rule 1 - Is the subsequent overruling of a

precedent relied on in a judgment a ground to review it ? - Supreme Court 2-judge
bench delivers split verdict - Justice MR Shah holds subsequent overruling is a
ground to review - Justice BV Nagarathna disagrees. Govt. of NCT of Delhi v. K.L.
Rathi Steels Ltd; 2023 LiveLaw (SC) 204 : 2023 INSC 259

Code of Civil Procedure, 1908; Order XLVII Rule 1 - Scope of Review - Even a third
party to the proceedings, if he considers himself to be an “aggrieved person,” may
take recourse to the remedy of review petition. The quintessence is that the person
should be aggrieved by the judgment and order passed by the Court in some
respect. (Para 7) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 :
2023 INSC 963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; Order XLVII Rule 1 - Scope of Review - (i) A
judgment is open to review inter alia if there is a mistake or an error apparent on
the face of the record. (ii) A judgment pronounced by the Court is final, and
departure from that principle is justified only when circumstances of a substantial
and compelling character make it necessary to do so. (iii) An error which is not self-
evident and has to be detected by a process of reasoning, can hardly be said to be
an error apparent on the face of record justifying the court to exercise its power of
review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not
permissible for an erroneous decision to be “reheard and corrected.” (v) A Review
Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.”
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and
reargue the questions which have already been addressed and decided. (vii) An
error on the face of record must be such an error which, mere looking at the
record should strike and it should not require any long-drawn process of reasoning
on the points where there may conceivably be two opinions. (viii) Even the change
in law or subsequent decision / judgment of a co-ordinate or larger Bench by itself
cannot be regarded as a ground for review. (Para 16) Sanjay Kumar Agarwal v. State
Tax Officer, 2023 LiveLaw (SC) 939 : 2023 INSC 963 : AIR 2023 SC 5636

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Code of Civil Procedure, 1908; Order XLVII Rule 1 - Supreme Court Rules, 2013 -
Scope of Review - Any passing reference of the impugned judgment made by the
Bench of the equal strength could not be a ground for review. A co-ordinate Bench
cannot comment upon the judgment rendered by another co-ordinate Bench of
equal strength and that subsequent decision or a judgment of a co-ordinate Bench
or larger Bench by itself cannot be regarded as a ground for review. (Para 20,
24) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : 2023 INSC
963 : AIR 2023 SC 5636

Code of Civil Procedure, 1908; Order XLVII Rule 1, Rule 9 - The Supreme Court
has upheld the decision of the Jammu and Kashmir and Ladakh High Court where
the court had held that where the assessee had been held entitled to the refund of
the Educational cess and Secondary & Higher Educational cess on the basis of the
judgment and order of the Supreme Court in M/s SRD Nutrients (P) Limited vs. CCE,
(2018) 1 SCC 105, which was applicable at the relevant time, the Revenue
Department was not entitled to make recovery of the said refunded amount on the
basis of the subsequent decision of the Supreme Court in M/s Unicorn Industries vs.
Union of India, (2020) 3 SCC 492, where the decision in M/s SRD Nutrients was
overruled by the top court. Commissioner of CGST and Central Excise (J&K) v.
Saraswati Agro Chemicals Pvt. Ltd., 2023 LiveLaw (SC) 522

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