Case No. 1
Maharajkumar Hanuvantsinhji Madansinhji Jadeja versus LH OF DECD Pragmalji
Third of Kutchh
Decided on September 7, 2022
Coram: Hon'ble Mr. Justice Hemant M. Prachchhak
The original plaintiff, Pragmalji, who passed away while the appeal was pending,
filed for a declaration and an injunction, asking the court to rule that the
defendant no.1, priest has no right to stop or obstruct the plaintiff from
performing the chamar and patri viddhi in accordance with very ancient religious
customs. The plaintiff also asked the court to grant an injunction to prevent
The plaintiff, current Maharani's spouse was alleged to be a part of the royal
line of the former Kutchh State, among other things, in the plaint. The
plaintiff is further alleged to be the eldest son of Late Maharao Shri
Madansinhji Jadeja, the former ruler of Kutchh, and as such, is entitled to
perform certain religious rituals and is also authorized to appoint a
representative of the Jadeja clan (i.e., "Jadeja Bhayat") to perform such
rituals on his behalf in the Mata Na Madh, Nakhatrana, temple of Goddess
The complainant further asserts that one of the rituals in the sanctuary that
has been practiced for centuries, dating back to the days of the former State of
Kutchh, is known as the "Patri Ceremony" and is carried out on Aaso Sudh Aatham
by members of the Royal family.
The complainant requested that Juvansinh Hamirli Jadeja conduct this puja in his
stead. However, since said Juvansinh Jadeja was not a part of the Royal family,
the initial accused no. 1 stepped in and prevented him from performing the Puja.
Plaintiff submitted the lawsuit for a declaration and perpetual injunction based
on the aforementioned claim.
- Whether in a particular case there has been a substantial compliance
with the provisions of Order XLI Rule 31 CPC has to be determined on the
nature of the judgment delivered in each case.
The impugned judgment and award passed by the learned 10th Additional District
Judge, Kachchh at Bhuj is quashed and set aside only on the ground that it is a
clear violation of the recent decision of the Hon'ble Apex Court on how and in
what manner the First Appeal under Section 96 of CPC is to be decided and the
matter is remanded back to the First Appellate Court to decide the same afresh
on merits and in accordance with the law.
Reasoning Of The Court
The rules of Order XLI of the Civil procedure Code specify how the Appellate
Court must deal with an Appeal under Section 96 of the Code, as well as the
process that must be followed. The appeal Court has the authority to overturn or
uphold the trial court's conclusions. The first appeal is a valued right of the
parties, and unless otherwise limited by law, the entire case is available for
re-hearing on both factual and legal Issues.
The Appellate Court's decision must, therefore, represent its conscious
application of mind and document findings backed by reasons on all Issues
raised, as well as the contentions advanced and pushed by the parties for
decision by the Appellate Court. It is also irrefutable that, in deciding and
disposing of the First Appeal under Order XLI read with Section 96 of the CPC,
the learned Appellate Court is required to frame the grounds for decision as
contemplated by Order XLI Rule 31 of the CPC.
On a cursory reading of the First Appellate Court's decision, it is clear that
the learned First Appellate Court made a serious error in failing to decide the
appeal in accordance with the provisions of Order XLI of the CPC, and thus, the
present appeal must be remanded back to the First Appellate Court to be decided
in accordance with the provisions of Order XLI Rule 11, 15, 31, and 33,
especially in light of the recent pronouncement of The First Appellate Court's
decision and order are hereby reversed and put aside.
On review of the lower Appellate Court's judgment and order, it is abundantly
clear that the First Appellate Court has failed to discharge its obligations as
a First Appellate Court, and thus, in my opinion, the lower Appellate Court's
judgment and award deserve to be quashed and set aside, and the case must be
remanded to the First Appellate Court for consideration on merits and in
accordance with law.
Case No. 2
Shivaji Shankar Jadhav & Anr. Versus Laxman Gajanan Godbole Through his Power
of Attorney Nikhil Dinkar Pawar
Decided on: February 6, 2018
Citation: 2018 SCC OnLine Bom 148
Coram: Mrs. Mridula Bhatkar, J
The Respondent in this case filed Regular Civil Suit No. 351 of 1999 before the
learned Single Judge in order to obtain a simplicitor injunction against the
appellants' father and the appellant, who the respondent claimed were unjustly
preventing the respondent from taking possession of the suit property.
The trial court dismissed the lawsuit by a judgment and order dated October 8,
2010, finding that the respondents did not succeed in establishing ownership of
the suit's property and/or illegal obstruction by the appellant's father and the
appellant herein, both of who were named as defendants in the lawsuit. Because
there was a delay in filing the appeal, the respondent filed an application for
a delay pardon. The respondent chose to appeal the trial court's decision.
The application for a delay pardon was approved by order dated March 17, 2017.
In this case, the respondent filed an application for a temporary restraining
order in appeal. Because the respondent had established a presumptive case and
demonstrated that the balance of ease is in the respondent's favour, the learned
District Judge approved the application and Issued an interim order in the
respondent's favour in this case.
It is decided that the appellant in this case had been unable to present any
kind of documented proof proving their actual ownership of the claim property.
The appellant chose to appeal an order from this court where the appellants had
contested the lesser Appellate Court's authority to Issue temporary injunctions.
In the appeal from order, there were additional reasons for appeal that we are
not concerned with in this case, such as whether interim relief can amount to
The reference order stated that the appeal from the order could not be
maintained. The learned Single Judge dissented from the previous stance made by
this Court and submitted this matter to a Division Bench/Larger Bench for
- Whether the temporary injunction order Issued in a Regular Civil Appeal
submitted under Order XLI of the CPC is appealable under Order 43 Rule (1)
sub-Rule (r) of the CPC?
The court disagrees with the earlier three Judges in the cases of Krishna
Pandurang Wankhede (supra), Shri Shivaji Shankarrao Patil (supra), and Subhash
Sheti Pawar (supra) who held that an interim injunction granted in an appeal
filed under Order XLI of the CPC is appealable under Order 43 Rule (1) sub-rule
(r) of the CPC. Certain very pertinent sections of Section 104 and Order 43 of
the CPC were not brought out to the previous benches and, as a result, were not
discussed at all. However, it is preferable to submit this matter to a larger
bench for a more authoritative ruling.
As a result, the current Appeal from Order is unsustainable.
Reasoning Of The Court
A decision is appealable under Section 96 of the CPC, and an order is appealable
under Section 104 of the CPC. Section 96 of the CPC is related to Order XLI, and
Section 104 is related to Order 43 of the CPC. Section 106 of the Civil
Procedure Code is a general provision, whereas Section 104, along with Order 43
Rule 1 of the Civil Procedure Code, is a particular and explicit provision.
Temporary injunction relief can be obtained in both the action and any appeal.
Section 104 of the CPC says in Subsection 2 that no appeal shall lie from any
decision passed in an appeal under this section. There is no need to examine
Section 104 of the CPC or the limit under sub-section 2 of Section 104 of the
CPC when there is a matter of temporary order in a Regular Civil Appeal under
Section 96 of the CPC.
Under Order XLI Rule 5 of the CPC, the Appellate Court has the authority to
delay the implementation of the trial Court's judgment or order. As a result,
the ruling must be Issued under appeal jurisdiction, which is the fundamental
and parent jurisdiction. If the lawmakers meant for this stay order Issued under
Rule 5 of Order XLI of the CPC to be appealable, it would have included it in
Rule 1 of Order 43 of the CPC. The legislation, however, makes no note of it.
The Court cannot interpret unwritten law. To summarize, even though the appeal
is a continuation of the action under Rule 2 of Order 43, the Rules of Order XLI
shall apply insofar as appeals from orders are stated. However, only four Rules
in Order XLI of the CPC are appealable under Order 43 of the CPC, namely Rules
19, 21, 23, and 23A of Order XLI of the CPC, and all other orders are not
appealable under Order 43 of the CPC. As a result, it is unsustainable.
Case No. 3
Somabhai Zerabhai Since Decd v/s State Of Gujarat
Decided on: Feburary 19, 2019
Coram: Hon'ble Mr. Justice K.S. Mudagal
The appellants' argument is that the lands in Issue are located in villages
Kotda (land survey no.53/1), Paravdi (land survey no.58/2), and Vadi Buzarg
(land survey no.140/2/B) and were initially owned by Virabhai Dhadhubhai, who
had two spouses, Rajliben and Baliben. The said Virabhai Dhadhubhai died in
1966, and the names of his two wives and children were entered into revenue
Following that, the daughters, Navaliben, Soniben, and Ramiben (Respondent
No.4), relinquished their right to the land bearing survey no.58/2 by declaring
to the lower revenue authority that they do not want any share in the property,
and their names were not entered in the revenue record. In the case of the other
lands, namely those bearing survey numbers 53/1, 64, 65, and 140/2/B, the name
of Respondent No.4 Ramtiben was continued after Baliben's death in 1992, as
evidenced by revenue entries.
The appellants say that in the year 1992, deceased Baliben executed a registered
will favour of the present appellants - Somabhai Zaverbhai & Others and after
her death accordingly the mutation entries were made and certified in the
revenue record at the relevant time in favour of the appellants.
Because the aforementioned entry was challenged by Ramtiben (Respondent No.4),
it was cancelled by the deputy collector and ordered to acquire the required
probate certificate from the appropriate civil court.
As a result, the appellants moved before the Civil Court, Godhra, for obtaining
a probate certificate for deceased Baliben's will, wherein the Trial Court,
without properly appreciating the Facts and evidences on the record of the case,
pleased to partially allow the probate application to the extent of 12 share
In addition to the aforementioned judgment and decree, the respondent No.4 filed
an appeal, and the appellants filed a Cross Appeal, where the Appellate Court,
without properly appreciating the Facts and circumstances of the case, allowed
the appeal filed by the respondent no.4 and dismissed the Cross Appeal filed by
Being aggrieved and dissatisfied with the aforementioned judgments and decree,
the petitioner filed this Second Appeal under Section 100 of the Code of Civil
- Is the compliance of Order XLI Rule 31 mandatory for a suit under
section 96 of Civil Procedure Code?
The decision and decree in question passed in Regular Civil Appeal No.71 of 2004
and the judgment and order passed in Probate Application No.55 of 1997, are
hereby quashed and set aside and the matter is remanded back to the First
Appellate Court to decide the same a fresh on merits and in accordance with law
after formulating the points of determination.
It is emphasized that the matter is remanded solely on the grounds stated above,
and that this Court has not considered the case's merits. As a result, the
current Second Appeal has been dismissed.
Reasoning Of The Court
Given the foregoing, the First Appellate Court must exercise its independent
judgment and define the problems properly and autonomously. The provisions of
Order XLI of the Civil procedure Code specify how the Appellate Court must deal
with an Appeal under Section 96 of the Code, as well as the process to be
The learned Appellate Court has not appreciated or reappreciated the evidence on
record, and the learned Appellate Court has disposed of the First Appeal under
Order XLI read with Section 96 of the CPC in a most casual and perfunctory
manner, and that too only in one paragraph, and thus the impugned judgment and
order dismissing the Appeal cannot be sustained and deserves to be quashed and
The matter must be remanded to the learned Appellate Court to decide and dispose
of it in accordance with law and on merits, after framing the required points
for determination as envisaged under Order XLI Rule 31 of the CPC and after
reappreciating the entire evidence on record and giving its own findings on all
the Issues/points for determination.
In light of the aforementioned established legal principles, the First Appellate
Court is compelled to essentially comply with the provision of Order XLI Rule 31
of the C.P.C. by issuing the ruling.
The decision of the First Appellate Court clearly shows that the learned First
Appellate Court made a serious error in not deciding the appeal in accordance
with the provisions of Order XLI of the CPC, and thus the present appeal must be
remanded back to the First Appellate Court to be decided in accordance with the
provisions of Order XLI Rule 11, 15, 31, and 33.
Case No. 4
Bulsara Kalaben Chandrakant Versus Dhimmar Ramanlal Devabhai
Decided on September 2, 2022
Coram: Hon'ble Mr. Justice Hemant M. Prachchhak
Lallubhai Bulsara has purchased the house as an associate of Natvar Printing
Press. The said Natvar Printing Press had been operating in the said land
pursuant to a certified selling deed. The owner Jamnaben was the Lallubhai's
wife, and they had six girls and three boys. The appellants in this case are one
of the boys' legitimate heirs.
In the instance of respondent no.1, Jamanaben performed a registered deed
followed by a codicil. It is the unbelievable case of respondent no.1 that the
son of Jamanaben with his family sought shelter in the disputed property, and
respondent no.1 plaintiff was delighted to hand over possession of the disputed
property to Chandrakantbhai (son of Jamanaben).
It is the appellants' case that they had been residing in the property prior to
forty years of the 02.05.1995, i.e., much prior to the filing of the suit, and
this fact is very clearly indicated in the sale deed, as Natavar Printing Press
was a forty-year-old family business on the 02.05.1995. Respondent no.1 served
an eviction notification on the plaintiffs herein, claiming that they were
licensees and he was the licensor. The defendant no.1 brought a suit, seeking
the removal of the plaintiffs herein.
The appellants herein appeared in the action through an elderly lawyer who did
not submit even a written statement on behalf of the appellants defendants, and
the Trial Court denied their right to file written statements. The elderly
counsel had not properly responded to the appellants and was constantly
Due to the carelessness of the appellants'/defendants' counsel, the case was
resolved ex-parte by decision and order in favour of plaintiff. The
appellants-defendants requested that the case be remanded for a merits hearing.
This appeal was also dismissed in 2019. The applicant no.3 filed Regular Civil
Suit No.24/2020 contesting the will and codicil signed by the Jamanaben.
The appellant has initiated this appeal in light of the aforesaid Facts.
- Whether there has been significant compliance with the provisions of
Order 41 Rule 31 CPC in framing the Issues and point of determination while
giving order in the particular case?
The present appeal is allowed. The judgment and order in Regular Civil Suit No.
27 of 2009 and the judgment and order in Regular Civil Appeal No.45 of 2013 are
hereby quashed and set aside and the matter is remanded back to the first
Both parties must keep the property's current status quo, with no third-party
rights established until the appeal is resolved.
As a result, the current petition is dismissed. Because the main second appeal
has been dismissed, the current civil application does not survive and is
Reasoning Of The Court
Given that the first appeal under Section 96 is a continuation of the suit
proceedings and that the first appellate court should have considered the fact
and the legal provision, the matter is remanded back to the concerned civil
court, where the defendants made a specific prayer in the memo of appeal.
However, the first appeal court decided not to return the case and resolve the
appeal, which is also contrary to established legal principles.
Returning to the Facts of the case, the first appeal court was compelled to make
specific comments concerning the contested elements of the case. It could have
focused the debate on merits only after formulating the particular reasons for
decision. Only then could it have dealt with the Facts in context.
The challenged decision and order of the learned Appellate Court appear to have
disposed of the Appeal filed under Order XLI of the CPC read with Section 96 in
a most casual and perfunctory way and that only in one line, so the challenged
decision and order rejecting the appeal by the learned Appellate Court cannot be
It is also undeniable that, in deciding and disposing of the first appeal under
Order XLI read with Section 96 of the CPC, the learned Appellate Court is
required to frame the grounds for decision as contemplated by Order XLI Rule 31
of the CPC.
Given all of these factors, the current appeal must be set aside because it is
based on a clear violation of Order XLI Rule 31 of the C.P.C., and it must be
remanded back to the first appellate court, where it must be decided within six
months of the date of receipt of the order, the record, and the proceedings.
Case No. 5
K. Karuppuraj v/s M. Ganesan
Decided on: October 4, 2021
Bench: M.R. Shah, A.S. Bopanna
The plaintiff and the defendant engaged into a sale arrangement for the property
located in Kaspa Coimbatore, in which the defendant agreed to transfer the
property for a sale consideration of Rs. 16.20 lakhs to the plaintiff. At the
moment of the agreement to sell, a partial selling consideration of
Rs.3,60,001/- was given. Certain conditions were specified in the sale deal. One
of the conditions was that the defendant, as the initial owner, remove the
renters from the property and then complete the sale document upon receipt of
the entire sale price.
The complainant served the defendant with a legal notification requesting that
the tenants be evicted from the property in Issue and that the sale deed be
executed upon receipt of the remainder of the sale consideration.
Following that, the plaintiff brought the current action before the learned
Trial Court seeking particular execution of the contract. The plaintiff's case
was that he was ready and willing to perform his share of the contract, but the
defendant did not remove the renters and did not come forward to complete the
sale title. As a result, the plaint stated that the defendant must remove the
tenants, fulfill his share of the contract, and complete the selling deed.
It was argued on the plaintiff's side that he was always ready to execute his
share of the contract because he had cash in his savings account. The defendant
filed a written declaration in response to the complaint. The plaintiff's
readiness and willingness to execute the specified portion of the contract was
It was argued that the plaintiff already had vacant custody because the renters
had departed, and that despite this, the plaintiff was unwilling to pay the
remaining consideration. Based on the evidence and the pleadings in the plaint,
the learned Trial Court ruled in favour of the plaintiff on the Issue of
readiness. However, the plaintiff was not willing to have the sale deed executed
as it is, so the Issue of willingness was ruled against the plaintiff.
The Trial Court also held that the defendant had failed to prove that the
tenants had vacated the suit property as claimed; however, the learned Trial
Court held on willingness against the plaintiff by observing that the plaintiff
has not demonstrated a willingness to purchase the property with the tenants and
that there are no such pleadings in the plaint, and that the plaintiff has not
elected to purchase the property due to its nature. As a result, based on the
evidence, the Trial Court concluded that the petitioner was not ready to buy the
property with the renters.
As a result, the learned Trial Court rejected the action, refused to Issue a
judgment for particular execution of the contract, and ordered the respondent to
return the advance sum of Rs.3,60,001/- plus interest at the rate of 18% per
annum. To be paid within two months from the date of arrangement to the date of
The learned Trial Court also ordered that a lien be placed on the property until
the petitioner receives payment from the respondent. The petitioner submitted an
appeal suit before the High Court after feeling offended and unhappy with the
learned Trial Court's verdict and order rejecting the suit for specified
The impugned judgment and order, relying on the affidavit filed before the High
Court in which the plaintiff stated for the first time that he is ready and
willing to purchase the property with the tenants, has allowed the appeal
without even re-appreciating the entire evidence on record and even without
framing the points for determination and has set aside the judgment and decree
passed by the learned Trial Court.
The original defendant, feeling aggrieved and dissatisfied with the impugned
judgment and order/decree passed by the High Court - First Appellate Court
allowing the appeal and thus decreeing the suit for specific performance of the
contract, has preferred the current appeal, Civil Appeal No.6014 of 2021.
Following the impugned ruling and order/decree, the defendant submitted a review
appeal with the High Court, which was denied, and is the topic of Civil Appeal
No.6015 of 2021.
- Whether the plaintiff is entitled for specific performance?
- Whether the plaintiff was ready and willing to purchase the property?
The Judgement given by trial court was upheld. The plaintiff's submission that
the agreement imposed a duty on the defendant to evict the tenants and hand over
the vacant and peaceful possession, which the defendant failed to do, and that,
in such a situation, not passing a decree for specific performance in favour of
the plaintiff would be giving a premium to the defendant despite his failure to
perform his part of the contract.
The plaintiff's submission that the defendant has not refunded the amount of
Rs.3,60,001/- with interest @ 18% as ordered by the learned Trial Court
concerned, the order passed by the learned Trial Court is very clear and the
defendant is obligated by law to pay the interest @ 18% until its realisation.
Reasoning Of The Court
The initial plaintiff in this case filed an action for specific execution of the
contract. Based on the evidence, the learned Trial Court ruled in favour of the
plaintiff on the matter of preparedness. However, the court declined to Issue a
decision for particular execution of the contract since the plaintiff refused to
acquire the property with tenants. As a result, the question of willingness was
ruled against the plaintiff.
The High Court permitted an appeal brought before it under Section 96 read with
Order XLI by the impugned Judgement and order, and cancelled and set aside the
decree made by the learned Trial Court dismissing the matter, and thereby
decreed the suit. After reviewing the challenged Judgement and decision of the
High Court, it is clear that there is a complete violation of decision XLI Rule
31 of the CPC.
The High Court did not address the Issues for decision required by Order XLI
Rule 31 CPC when dismissing the appeal. It also appears that the High Court,
like the First Appellate Court, did not analyse the complete topic and Issues in
detail, and as a result, it does not appear that the High Court re-appreciated
the evidence while dismissing the first appeal.
It also appears that the High Court dismissed the appeal filed under Order XLI
CPC read with Section 96 in a very casual and cursory way. Apart from failing to
establish the Issues for Judgement as required by Order XLI Rule 31 CPC, it
appears that the High Court has also failed to exercise its authority as a First
Appellate Court. As previously stated, the High Court has neither reviewed the
whole evidence on record nor Issued any particular conclusions on the questions
brought before the learned Trial Court.