Beruflich Dokumente
Kultur Dokumente
High Court, wherein it is held that “Suit is
not Maintainable”
6. Specific Relief Act, 1963, Section 6 Possession
Nature of occupation on behalf of other Suit not
maintainable. Where A was entrusted by B to look
after certain plot of land during his absence from
tile country, B's occupation is not such possession
as to entitle him to a remedy under section 9 of the
Specific Relief Act against A for and on whose behalf
he had been holding the plot.
6.1. Sobha v/s Ram Phal, AIR 1957 All 394.
8. Civil P. C. 1908, O.20, R.12 Suit for recovery
of possession Premises amenable to provisions of
Rent Control Act Suit not maintainable by
camouflaging by inclusion of ancillary relief of
recovery of rents etc. or otherwise.
8.1. Yelamati Veera Venkata Jaganadha Gupta v/s
Vejju Venkateswara Rao, AIR 2002 AP 369.
9. The plaintiffs brought a suit for cancellation of
a registered Kabuliat executed by defendant No.1 in
favour of plaintiff No.1 without his knowledge in
respect of suit land after declaring the said
kabuliat to be false, fabricated and illegal
document. The plaintiff 1 had alleged that the suit
land had been given to plaintiffs Nos.2 and 3 by
exchange and while they were in peaceful possession
defendant No.1 trespassed upon the land and with a
view to support his possession in the Criminal
proceedings started against him executed this
fraudulent kabuliat.
Held that the suit as framed was not maintainable. If
the plaintiffs' case was that the Kabuliyat alone
will not pass any title to the defendant, the
Kabuliyat will not affect the title of the plaintiff
and the question of the document to be void or
voidable as against the plaintiff did not arise. It
the contention was that the document was not binding
on the plaintiffs as it was obtained by fraud and
fabrication, even then the plaintiffs not being a
party to the document and the defendant No. 1 not
having executed the deed for or on behalf of the
plaintiff No. 1, the question of getting it cancelled
under section 39 of the Specific Relief Act did not
arise. On the plaint allegations, as between the
defendant No. 1 and plaintiffs Nos. 2 and 3, the
question was which document was to prevail whether
the exchange or the Kabuliyat, and as between the
plaintiffs Nos. 2 and 3 and plaintiff No. 1 the
question was who had a better title to the property.
It will thus be adjudicating the respective claims of
plaintiffs 2 and 3 and defendant No. 1 to the
property and relief under section 39 was not an
appropriate relief under these circumstances.
9.1. Niasha Ghose v/s Kari Siddek Ali, AIR 1966
Assam 4.
10. Where a suit was filed for declaration that the
suit property was an old Hindu Hemadpanthi temple of
Shri Mahadeo i.e. a Shivalaya which was also known in
the past as Siddeshwar temple in which Hindus have
right to worship Shri Mahadeo and other deities in
that temple, and founded on that relief was the
relief claimed against the defendants for not to
interfere or disturb Hindus of village in general and
the plaintiffs in particular in their vahivat and
worship of all the deities in the Hindu temple
described in the suit, and there was also a prayer
for alternative relief to the effect that the Muslims
of that village in general and the defendants in
particular be ordered to deliver possession of the
said property in suit to the plaintiffs as
representatives of deity and of the Hindus of
village, in the event, court finds that the
plaintiffs were not in possession of the suit
property on the date of institution of the suit by
virtue of S. 19 read with Sections 79 and 80 of the
act, the suit as filed is clearly barred by law,
because the reliefs claimed by the plaintiffs would
require the court to examine as to whether the Trust
exists and whether such Trust is a public Trust and
whether suit property is the property of such Trust,
and it was not only suit for declaration of title of
suit property.
10.1. Bashir Abbas Kudale v/s Shri Mahadeo, AIR
2003 Bombay 224.
11. The father of the petitioners had become owner of
the subject land under the provisions of the Tenancy
Act and the petitioners were seeking repossession of
the said land from respondent solely on the ground
that the subject land could not have been transferred
by way of sale of respondent without the previous
sanction of the Collector and failure to do so made
the agreement of sale invalid u/S. 43(2) of the
Bombay Tenancy Act. Thus the petitioners claim for
repossession of the subject land from respondent was
solely based on the scheme of the Tenancy Act.
Section 85 of the Tenancy Act creates a bar of
jurisdiction of Civil Court to settle, decide or deal
with any question which is by or under the Tenancy
Act required to be settled, decided or dealt with by
the Mamlatdar or Tribunal, a Manager, the Collector
or the Revenue Tribunal in appeal or revision.
11.1. Himatrao Ukha Mali v/s Popat Devram Patil,
AIR 1999 Bombay 10.
16. Bombay Public Trusts Act, 1950, S.51 , S.50 and
S.2(10) (as amended by Bombay Act 28 of 1953) Suit
filed by some of the trustees falling within the
scope of S.50 Consent of Charity Commissioner not
obtained Suit not maintainable in view of S.51 It
cannot be said that phrase "the persons having an
interest in any public trust" in S.51 would not
include trustees of the trust and hence provisions of
S.51 cannot be invoked.
16.1. Patel Nanji Devji v/s Patel Jivraj Manji,
AIR 1988 Gujarat 182. Workmen of Lokashikshana
Trust v/s M/s. Lokashikshana Trust, AIR 2001
Karnataka 212.
25. A person cannot seek to advance the claims of a
group of persons or community without adopting the
procedure under O.1, R.8, Code of Civil Procedure, if
the relief is prayed for only on the basis of the
rights of the community as such. A distinction has to
be maintained between cases where the individual put
forward a right which he has acquired as a member of
a community and cases where the right of the
community is pot forward in the suit. If it is the
former, the individual is not debarred from
maintaining the suit in his own right in respect of a
wrung dune to him even though the act complained of
may also be injurious to some other persons having
the same right. If it is the latter, the procedure
under O.1, R.8, Code of Civil Procedure has to be
followed and without doing so, no relief could he
granted to the individual concerned.
25.1. Assistant Commissioner, Hindu Religious and
Charitable Endowment, Salem v/s Nattamai K.S. Ellappa
Mudaliar, AIR 1987 Madras 187.
30. A Suit was filed for removal of public nuisance
created by way of wrongful act of defendant affecting
the public way. Whether plaintiffrespondent No. 3
was not entitled to file the suit on his own? Held
that: in the case on hand, it does not involve
determination of any right independent under sub
section (2) of Section 91 of CPC. Plaintiff ought to
have invoked the assistance of Advocate General or
can seek leave of the court to file a suit by two or
more persons for removal of public nuisance affecting
the public way.
30.1. Kanti v/s U. I. T., Bikaner, AIR 1998
Rajasthan 108.
31. A suit by one of the partners of a dissolved firm
for rendition of accounts and recovery of money as may
be found due to him against the other partners, one of
whom is an undischarged insolvent, is not maintainable
as against the undischarged insolvent in the absence of
leave of the insolvency Court by virtue of S.17 read
with S.46(3) of the Presidency Towns Insolvency Act.
Since all the partners are necessary parties to such
suit and it would be impossible to do any accounting
between them in the absence of any one of them the suit
would be equally incompetent against the other
partners.
31.1. Narsingh Das v/s Bhairon Dan, AIR 1961
Rajasthan 81. Relied upon in AIR 1976 Rajasthan
249.
33. Civil Procedure Code, Sec.47 Or.21, Rules 95 & 96
First respondent, Auction purchaser filed suit for
declaration of title and for recovery of possession and
also for mandatory injunction for removal of constructions
Appellant, purchaser of suit property contends that suit
not maintainable and is barred u/Sec.47 CPC and first
respondent, auction purchaser could have secured possession
by filing application under R.95 of Or.21 and since
limitation therefor expired long back, suit not
maintainable Trial Court decreed suit and same affirmed
in appeal. Rights of auction purchaser Stated Sec.47
mandates that all questions arising between parties to
suit, in which decree passed, or persons claiming through
them shall be determined by executing Court and not by
separate suit. Supreme Court observed that auction
purchaser can avail remedy of filing suit for possession
Purport of Explanation II of Sec.47 CPC not canvassed
before Supreme Court, obviously because occasion did not
arise Permissibility of filing a separate suit inspite of
bar contained in Explanation II of Sec.47 did not fall
for consideration before their Lordships If such
situation existed, naturally said observation would have
assumed status of law of land.
33.1. Vegendla Subba Rao v/s. Puwada Srinivasa Rao, [2005]
0 Supreme(AP) 614/ [2006] 2 CivCC 32/ [2005] 5 ALD 260/
[2005] 6 ALT 106/ [2005] 3 LS 19/ [2005] 0 AIR(AP) 449.
37. The subject matter of the two suits being on the same
cause of action viz. infringement and passing off by the
defendants and the identity of relief prayed for in the two
suits would amply show that the subject matter of the two
suits is the same. The contention that the packaging
(carton) of the goods of defendant was discontinued and new
packaging more similar to the plaintiffs' goods had been
started by defendant No. 1 from, 2003 would not alter the
cause of action based upon which the first suit was
instituted. Distinction has to be made between the facts
constituting the cause of action and facts which are
necessary to establish those facts comprised in the cause
of action. The change in the packaging by the defendant
would at most be regarded as a piece of evidence which may
be necessary to prove the fact constituting the cause of
action based on which the suit is instituted for the
infringement/passing off by the defendant of his goods as
that of the plaintiff. The fact comprising the cause of
action is the act of the defendant in allegedly infringing
the trademark of the plaintiffs and using the packaging
deceptively similar to that of the plaintiff. The
subsequent packaging/trade dress adopted by the defendants
would constitute evidence of such fact but would not by
itself constitute a fresh cause of action for a second suit
to be filed during the pendency of the first suit. The
institution of the present suit without leave of the Court
wherein the first suit has been instituted would prima
facie render the instant suit not maintainable on the
authority of the judgment of the Supreme Court in Sarguja
Transport Service's case, (AIR 1987 SC 88).
37.1. Heinz Italia v/s Dabur India Limited, [2003] 0
Supreme(Cal) 444
38. The exclusion of the benefit/usufruct of the property
rented and is being excluded from receiving any rent for
the suit property. The suit property was rented in
September, 1973 however, the appellant had slept over his
right for more than 12 years and has filed the suit only in
May, 1986 which is not maintainable and time barred as per
the provisions of the Limitation Act.
38.1. Maha Singh v/s Anand Singh, [2009] 0 Supreme(Del)
36/ [2009] 112 DRJ 460/ [2009] 156 DLT 674/ [2009] 108
DRJ 152/ [2010] 8 RCR(Civ) 1124.
40. H.P. Cooperative Societies Act, 1968 Section 72 and
93 — Limit was sanctioned by bank — Overdrawn — Proceedings
initiated before the Registrar — Plaintiff filed present
civil suit — Application under Order VII Rule 11 CPC filed
by defendant in the civil suit — Only remedy available to
the petitioner is by way of appeal as per proviso of
Section 93 — Suit not maintainable — Application under
Order VII Rule 11 CPC allowed.
40.1. Himachal Pradesh State Co Operative Bank Limited v/s
Gulshan Kumar And Brothers, [2001] 0 Supreme(Del) 55/
[2001] 3 AD(Del) 474/ [2001] 91 DLT 140/ [2001] 58 DRJ
248.
41. Arbitration and Conciliation Act, 1996 Section 8 —
Arbitration Agreement — Reference — Power, Ambit and Scope
of — Maintainability — Wider than Section 34 — Appears to
be a natural Jurisdiction prudential progression — Allowed
— Parties referred to arbitrator — Suit rendered
infructuous.
41.1. MMTC Limited v/s Shyam Singh Chaudhary, [2001] 89
DLT 683/ [2001] 57 DRJ 743/ [2001] 2 AD(Del) 444/ [2000]
0 Supreme(Del) 985.
42. Civil Procedure Code 1908 Section 9 — bar on suit to
he filed by unregistered firm — suit filed by the partner
of an unregistered firm — suit not maintainable on behalf
of such firm.
Partnership Act Section 69(2) — effect of non
registration of the firm — suit filed by a partner seeking
allotment of land to the firm on the basis of the firm
doing the business of Circus — suit not maintainable — suit
dismissed.
42.1. Lalit Kumar v/s Municipal Corporation Of Delhi,
[1994] 4 AD(Del) 169/ [1994] 31 DRJ 481/ [1994] 56 DLT
123/ [1994] 0 Supreme(Del) 627.
43. RDBI Act, U/s 18 no Court or other authority have
or is entitled to exercise any jurisdiction, power or
authority in relation to the matters specified in Section
17. As the attachment and sale of the property for recovery
of the amount of debt is made by the Tribunal, in view of
the power delegated under Section 17 of the Act, we hold
that against such action of the DRT or the order passed by
the Recovery Officer at the instance of the DRT, no suit is
maintainable before a Civil Court in view of the bar of
jurisdiction under Section 18. For the said reason, we hold
that in the present case the Civil Court has no
jurisdiction to declare that the 3rd respondent had no
right to disturb the right of the plaintiffs in the
aforesaid properties nor could have passed a permanent
injunction on the 3rd respondent restraining it from taking
any action causing loss or damage to the share of the
plaintiffs in respect of the suit properties.
43.1. Naliniben Rajnikant Patel Through Power Of Attorney
v/s Rashmikant Manubhai Amin,[2010] 0 Supreme(Guj) 189/
[2010] 0 AIR(Guj) 130/ [2010] 3 GLR 2608.
45. Code Of Civil Procedure Sec 9 read with Partnership
Act Section 69(2) When there is change in the
constitution of the Firm and some partner is retired or
added all should be registered with the Firm and a suit
filed after the change in the constitution of the firm,
until the change is notified to the Registrar is not
maintainable.
45.1. Kuldip Raj v/s Medicos Chemists And Druggists,
[1998] 0 KashLJ 67/ [1997] 0 SriLJ 361/ [1997] 0
Supreme(J&K) 56.
50. Civil P.C., 1908 O. 23 Rr. 3 proviso and 3A r/w S.
151 compromise can be challenged by filing petition
under R. 3 proviso separate suit not maintainable such
petition can be filed under R. 3, proviso r/w S. 151.
Balmukund v/s Bhujbal Singh, [2002] 0 Supreme(MP) 100/
[2002] 2 Vidhibh 45.
51. An advertisement Was made in Hindi Daily newspaper Nav
Bharat by the Pleasure Drinks Pvt. Ltd., Happy Chambers,
Maharana Pratap Nagar, ZoneII, Bhopal inviting
applications for granting wholesale agency for soft drinks
as manufactured by the Company. The plaintiffappellant
applied for the grant of agency in his favour. The
plaintiff was one of the applicants seeking the agency at
Shahdol and he received a telephonic message from Jabalpur
from Pleasure Drinks Pvt. Ltd. Naya Bazar, Jabalpur for
coming to Jabalpur and depositing a sum of Rs. 10,000/.
Consequent upon this, the plaintiff came to Jabalpur and
deposited the desired sum through Bank Draft which was sent
to the Head Office at Bhopal.
The question involved is regarding the determination of the
jurisdiction. Whether the Court at Shahdol had no
jurisdiction to entertain the suit and whether the plaint
has been rightly returned for presentation before the
appropriate Court?
As no act was done by the Office of the defendant No. 1 at
Shahdol. Apart from this, if that office was in any way
connected with the controversy then it could have been made
a defendant in the suit. That office is not made defendant
in the suit, though the office at Jabalpur is one of the
defendants in the suit when the plaintiffs contract
relating to the agency was to be given from the Head office
at Bhopal.
The words "carries on business" have to be interpreted in
the context of the controversy for the purpose of
jurisdiction. The office of the defendantCompany though
situate at Shahdol but had no connection, authority or
power in the matter of inviting applications for granting
wholesale agency or for getting money deposited. No other
case was cited by the learned counsel for the appellant and
no other argument was advanced.
Murlidhar v/s Pleasure Drinks Pvt. Ltd., [1995] 2 MPWN 81/
[1995] 0 Supreme(MP) 144.