2017 - A.P.DIGEST - JUNE 2


Or.39, rule 1 and 2 C.P.C. - granting interim injunction against sub registrar who is not a party to the suit - No interim injunction exparte can be granted against third party to the suit-
Even in Shyamali Das v. Illa Chowdary and Others
(6th supra), the Apex Court made it clear that the injunction cannot
be granted against the person who is not a party to the proceedings,
but the Tribunal observed that in the utmost necessity the court can
grant an interim order even before impleading the person against
whom the interim order is sought for.   It is not the law declared by
the Apex court, but it is an observation made by the Tribunal.  Even
otherwise, it is for the court to record reasons that there is an utmost
necessity to grant an interim injunction, before impleading a person
against whom the interim order was sought for. But here the order is
bereft of any reasons to conclude that there is utmost necessity.  Even
the order is silent that in view of utmost necessity the interim order is
granted, the Tribunal is not expected to pass such an order based on
stray observation in the judgment of the Apex Court without
recording reasons that there is an eminent or utmost necessity to
grant an interim order restraining the Sub-Registrar-I from registering
the document during pendency of the suit.
In the present case, an ex parte
interim order is passed against Government or public officer, who is
not a party to the suit by then, without recording reasons as required
under Rule 3 of Order XXXIX of CPC, without issuing show cause
notice as required under Section 80(2) CPC and beyond relief claimed
in the suit.  Therefore, the order under challenge in I.A.743 of 2012 is
clearly vitiated by illegalities and therefore liable to be set aside.

Popular posts from this blog

Section 8 of the Hindu Minority and Guardianship Act, 1956 - permission of court for selling minor property by natural guardian- In the present case, though it is stated that the property has been sold for the proper benefit of the minors, their protection, education and marriage,there is nothing on record to suggest that previous permission of the Court was obtained by the natural guardian before transfer by sale in question.-2015 S.C.(2013) MSKLAWREPORTS24

Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the powers of natural guardian of a Hindu minor and the said section mandates that the natural guardian has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, etc. The provision reads as follows: Sec. 8 . Powers of natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor; or (b) lease any part of such pro...
Read more

Court fee - Sec.34 of A.P.C.F & S.V.Act - partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it did not insist on payment of ad-valorem Court-fee, on such items. It, however, took a different view, as regards the movable properties. Neither from the plaint, nor from the endorsement made by the trial Court, it is found that there is any distinction, as to the nature of rights claimed, in respect of Plaint-A Schedule properties, on the one hand, and Plaint-B schedule properties, on the other hand. In fact, the nature and incidence of possession, of an immovable property, gives rise to, relatively greater consequences of law, than the possession of an item of movable property. The possession of an item of immovable property can be said to be more assertive, firm and lasting, than the one, of movable property. The endorsement made by the trial Court cannot be sustained, either on law, or on facts. 2015 A.P.(2006)MSKLAWREPORTS

partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it...
Read more

Court Fee - whether on refund of advance money or on entire sale agreement consideration - Specific performance of contract - suppression of material facts(previous litigations on the property) - contract rescinded - suit filed for refund of money - court fee is to be paid on refund claimed amount but not on entire sale agreement consideration = 2015 CHENNAI(2013) MSKLAWREPORTS

it is clear that seeking relief of specific performance of the contract is different from seeking return of advance amount. It has been held that if a suit is filed without seeking specific performance of contract, but only for return of advance amount paid, subsequently, the plaint cannot be amended. 16. As per the pleadings of the plaint, the suit was filed by the petitioner / plaintiff, stating that the respondent / defendant had suppressed the pendency of various litigations, in respect of the property, which is the subject matter of the agreement for sale, hence, he rescind the contract and demanded the respondent for return of the advance amount.  At this stage, the Court below cannot go into the merits of the case for deciding the Court fees payable. The Court below has to consider the pleadings of the petitioner / plaintiff. As per the averments made by the petitioner / plaintiff, the respondent / defendant had suppressed the pending litigation, in respec...
Read more