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1 - 10 of 19 (0.54 seconds)Section 104 in The Code of Civil Procedure, 1908 [Entire Act]
Section 91 in The Code of Civil Procedure, 1908 [Entire Act]
Section 92 in The Code of Civil Procedure, 1908 [Entire Act]
Zila Parishad, Budaun And Ors. vs Brahma Rishi Sharma on 17 November, 1969
A Division Bench of this Court in the case of Punjab National Bank vs. Salim Mian, 2007 ADJ (5) 261 after taking into consideration the Full Bench judgment of this Court in the case of Zila Parishad, Budaun (supra) has held as follows:
Chandravathi P.K. And Ors vs C.K. Saji And Ors on 12 February, 2004
36.However, it appears that in none of the aforementioned cases, the question as regard the right of the defendant to assail the judgment and decree on merit of the suit did not fall for consideration. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. and Others Vs. C.K. Saji and Others, (2004) 3 SCC 734]
Shyam Sundar Sarma vs Pannalal Jaiswal And Others on 4 November, 2004
38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/ or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhari that the 'Explanation' appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others [2004 (9) SCALE 270]."
M/S Transcore vs Union Of India & Anr on 29 November, 2006
Appeal is maintainable both against grant of ex parte injunction order as well as against the order passed after hearing both the parties. Thus, there is procedural difference in the two and the stage of the appeal is also different, for the simple reason that while considering the appeal under Order 43 Rule 1 (r) against the order passed under Order 39 Rule 1 of the Code, only material on which injunction order has been passed is taken into consideration, whereas in the appeal preferred under Order 43 Rule 1 (r) against the order passed under Rule 4 of Order 39 entire material has to be taken into consideration, including the documents which have been submitted by the defendant at the said stage of the proceeding. There is no statutory embargo, whatsoever, imposed upon the defendant to invoke the two proceedings simultaneously. Apex Court in the case of Transcore vs. Union of India , AIR 2007 SC 212, has considered at length, the doctrine of election of remedies, by mentioning that said doctrine is evolved by Courts on equality, and there are three elements of election, namely existing of two or more remedies; inconsistencies between such two remedies and choice of one of them. If one of the three elements is not there, the doctrine will not apply. Here the remedies provided for are not at all inconsistent to each other, rather both the remedies recognize existence of same facts. Both, the application under Order 39 Rule 4 as well as appeal under Order 43 Rule 1 (r) are to be decided on different parameters as already noted above.