Asma Lateef & Anr. vs Shabbir Ahmad & Ors.

Held: Appellants-plaintiffs had instituted a civil suit against the three defendants-K (defendant no.1), K’s son S (defendant no.2) and R (defendant no.3) – K filed his written statement on 05.12.1990 and inter-alia contended that suit was barred by s.331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 – No written statements was filed by other two defendants – Appellants moved an application u/rr. 5, 10 of Or.VIII, CPC for pronouncement of judgment against S (defendant no.2) and the same was allowed – K passed away and the suit against him was dismissed as abated – In the instant case, the trial Court is presumed to be aware of the fact that the written statement of K was on record or else it would not have fixed the next date for settling ‘issues’ – In a situation where maintainability of the suit was in question and despite S not having filed his written statement, it was not a case where the Trial Court could simply pronounce judgment without even recording a satisfaction that it had the jurisdiction to try the suit and adjudicate the contentious issue(s), not to speak of pronouncing its verdict against S without assigning a single reason by treating the averments in the plaint to be admitted – The High Court rightly observed that even on pronouncement of judgment against S, the lis remained alive as against K and decision on the objection as to maintainability could have resulted in a contrary decision – In the matter at hand, the filing of the written statement by K denying the averments made in the plaint warranted that the appellants’ claims be proved by evidence, oral and/or documentary, instead of decreeing the suit against one of the defendants in a most slipshod manner – As far as the objection available to the respondents 1 to 3 u/s. 47 of CPC is concerned, it is the settled position of law that the powers of an executing court, though narrower than an appellate or revisional court, can be exercised to dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction of the court that made the same rendering it a nullity in the eyes of law – The Executing Court and the High Court were right in holding that the objection raised by the respondents 1 to 3 to the executability of the decree was well-founded – Further, the decision rendered by a court on the merits of a controversy in favour of the plaintiff without first adjudicating on its competence to decide such controversy would amount to a decision being rendered on an illegal and erroneous assumption of jurisdiction and, thus, be assailable as lacking in inherent jurisdiction and be treated as a nullity in the eyes of law; as a logical corollary, the order dated 05.08.1991 is held to be ab initio void and the decree drawn up based thereon is inexecutable – That apart, the order dated 05.08.1991 does not reveal any adjudication leading to determination of the rights of the parties in relation to any of the matters in controversy in the suit and, therefore, the decree since drawn up is not a formal expression of an adjudication/determination since there has been no adjudication/determination so as to conform to the requirements of a decree within the meaning of section 2(2) of CPC – Therefore, the trial Court had no authority to decree the suit against S in exercise of its power u/r.10 of Or.VIII, CPC – No reason to interfere with the judgment of the High Court. [Paras 6,20,29,41,50,52] Code of Civil Procedure, 1908 – r.10 of Or. VIII – Scope and extent of power – Discussed. [Paras 13, 14, 15, 16, 17] Code of Civil Procedure, 1908 – rr. 5, 10 of Or. VIII – When the defendant defaults in filing written statement – What is required by the plaintiff:

Held: In a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted (pronouncing judgment against defendant), it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court – Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence – Rule 10, in fact, has to be read together with Rule 5 of Order VIII and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission – Since facts are required to be pleaded in a plaint and not the evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim. [Para 18] Code of Civil Procedure, 1908 – Jurisdiction – Essence of: Held: The essence really is that a court must not only have the jurisdiction in respect of the subject matter of dispute for the purpose of entertaining and trying the claim but also the jurisdiction to grant relief that is sought for – Once it is conceded that the jurisdiction on both counts is available, it is immaterial if jurisdiction is exercised erroneously – An erroneous decision cannot be labelled as having been passed ‘without jurisdiction’ – It is, therefore, imperative that the distinction between a decision lacking in inherent jurisdiction and a decision which suffers from an error committed in the exercise of jurisdiction is borne in mind. [Para 35]

Code of Civil Procedure, 1908 – Jurisdiction – Determination of question of jurisdiction by civil Court:

Held: Jurisdiction is the entitlement of the civil court to embark upon an enquiry as to whether the cause has been brought before it by the plaintiff in a manner prescribed by law and also whether a good case for grant of relief claimed been set up by him – As and when such entitlement is established, any subsequent error till delivery of judgment could be regarded as an error within the jurisdiction – The enquiry as to whether the civil court is entitled to entertain and try a suit has to be made by it keeping in mind the provision in section 9, CPC and the relevant enactment which, according to the objector, bars a suit – The question of jurisdiction has to be determined at the commencement and not at the conclusion of the enquiry. [Para 38]

Code of Civil Procedure, 1908 – Jurisdiction – Question of jurisdiction at the stage when a Court considers the question of grant of interim relief:

Held: Where interim relief is claimed in a suit before a civil court and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law and also contends on that basis that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law – It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC – That could amount to an improper exercise of power – If the court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief – However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non-grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner justifying the course of action it adopts – In other words, such an order may be passed, if at all required, to avoid irreparable harm or injury or undue hardship to the party claiming the relief and/or to ensure that the proceedings are not rendered infructuous by reason of non-interference by the court. [Para 39]

Judgment/Order – Cardinal principle of:

Held: It is one of the cardinal principles of the justice delivery system that any verdict of a competent judicial forum in the form of a judgment/order, that determines the rights and liabilities of the parties to the proceedings, must inform the parties what is the outcome and why one party has succeeded and not the other - the ‘why’ constituting the reasons and ‘what’ the conclusion – Apart from anything else, insistence of the requirement for the reason(s) to support the conclusion guarantees application of mind by the adjudicator to the materials before it as well as provides an avenue to the unsuccessful party to test the reasons before a higher court – All civil courts in the country have to regulate their judicial work in accordance with the terms of the provisions of the CPC – Any egregious breach or violation of such provisions, would be ultra vires. [Paras 47, 48]