Court : Mumbai Aurangabad
..... and the bombay amendment of proviso in the concerned rule and observed that during the course of the trial in regular civil suit no.526/2009, on 4.2.2009, the present applicant was reminded of regular civil suit no.115/2008 and that the said suit had proceeded exparte against him ..... and further considered the fact of applicant defendant having filed regular civil suit no.526/2009 for perpetual injunction against the respondent plaintiff. ..... however, the district judge has relied on the amended second proviso as inserted by this high court, which reads as under: provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the court is satisfied that the defendant knew, ..... district judge, however, considered the matter on the basis of bombay amendment of second proviso below order ix rule 13 of c.p.c. ..... no.115/2008, the appellant did not bother to appear before the court and now took vexatious defence about non-service of summons to him. 13. ..... there are three reports of two bailiffs of multiple efforts made and the second and third reports show refusal by the applicant defendant and material was discussed by the district judge, demonstrating as to how on 4.2.2009 applicant was confronted with the fact that regular civil suit no.115/2008 was pending against him and had proceeded exparte, and judgment came to be delivered only on 20.2.2009. ..... 115/2008 against him and therefore, it was obligatory for the appellant to act as a prudent person. .....
Tag this Judgment!Court : Mumbai Aurangabad
..... by way of an amendment, the following portion is substituted by the code of civil procedure (amendment act, 1976): " so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as a subject-matter of the suit. ..... ) and ors (supra), single judge of this court while dealing with the similar issue and deciding the scope of order 23, rule 3 of the code of civil procedure and its applicability to the eviction proceedings under the bombay rents hotel and lodging house rates control act, 1947 has taken a following view and held that : "16. ..... after the amendment in rule 3 of order 23 of the code of civil procedure. ..... after the amendment of 1976, on careful reading of the judgment, the discussion of order 23, rule 3 of the code of civil procedure i.e. ..... , reported in air 2006 supreme court 2628 (1) learned counsel for the respondent submitted that most of the cases relied by the learned counsel for the petitioner are prior to the amendment of 1976 in order 23 rule 3 of the code of civil procedure. ..... while refuting the submissions of learned counsel for the petitioner, learned counsel for the respondent relied on amendment of the 1976, which was enacted in rule 3 of the code of civil procedure. .....
Tag this Judgment!Court : Mumbai Aurangabad
..... should be liberal in allowing applications for leave to amend pleadings but they also must bear in mind the statutory limitations brought about by reason of the code of civil procedure (amendment) acts; the proviso appended to order 6 rule 17 ..... . by reason of the civil procedure code (amendment) act, 2002 (act 22 of 2002), parliament inter alia inserted a proviso to order 6 rule 17 of the code which reads as under: "provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the ..... pleadings in paragraph-a of the written statement at pages 28 and 29 of the compilation of the writ petition and the matter which the defendant nos.2 and 4 wish to incorporate in the written statement by way of amendment, it is abundantly clear that, names of two legal heirs namely manjulabai and anjanabai are mentioned in the matter which is to be inserted/incorporated in the written statement and though, it is not stated in express ..... paragraph-7 of the impugned judgment, it would make abundantly clear that, the trial court in unequivocal language has observed that, the defendants have filed the said application for amendment of the written statement at belated stage and they should have filed such application at the earliest opportunity, and since they have not filed said application at the earliest ..... for the petitioners, by way of amendment, new defence is being taken by the defendants ..... ( ..... 2009 .....
Tag this Judgment!Court : Mumbai Aurangabad
..... or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter- claim is in the nature of a claim for damage or not: provided that such counter-claim shall not exceed the pecuniary limits of the ..... from the above observations made by the apex court as are reproduced herein above, the apex court, in the light of amended provisions of order 8 rule 6, whereby rule 6a to 6g of code of civil procedure were incorporated, has noted the limitation imposed which entertaining the counter claim; as provided in sub rule (1) namely the counter claim shall not exceed the pecuniary ..... it is true that preceding pc amendment act, 1976, rule 6 of order 8 limited the remedy to set off or counter-claim laid in a ..... by cpc amendment act, 1976, rules ..... introduced by amendment act of 1976. ..... it is true that in money suits, decree must be conformable to order 20, rule 18, cpc but the object of the amendments introduced by rules 6a to 6g are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the ..... , which was filed in accordance with the provisions of section 38 of the specific relief act for perpetual injunction, was ordered to be excluded with liberty to file fresh suit by ..... even before 1976 act was brought on statute, .....
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..... considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is waqf property and, which has been registered as such under this act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice as to why a order requiring him to remove the encroachment ..... if the period of lease, tenancy or license had expired or there was termination of such relationship, but the waqf institution had not approached tribunal or civil court and the waqf institution wants/wanted to take action to take possession after coming in to force of aforesaid amendment of 2013, then it has become open to it to approach chief officer. ..... in view of aforesaid position of law and in view of the provisions of the act, which are already quoted, this court has no hesitation to hold that prior to amendment of 2013 it was necessary for the waqf institution to follow other procedure like termination of lease, tenancy or license and then start proceeding for eviction. ..... as in the present matter, such was not the defence of the present petitioners and as they are not the owners, the chief officer did not commit any error in holding that they are 'encroachers'. .....
Tag this Judgment!Court : Mumbai Aurangabad
..... emerges from the aforesaid decision that appropriate orders in exercise of powers under the code of civil procedure can be passed if the mandatory requirements enjoined by section 83 of the act to incorporate the material facts in the election petition are not complied with. ..... , absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. ..... it is stated that petitioner has undertaken a careful study and he, in his representation dated 24.10.2009 to the returning officer, has expressed apprehension about manipulation in evms by the returning officer to 85- ..... , observed that the law does not require material particulars even in respect of allegations of corrupt practice, but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under section 86 of the act. ..... not require material particulars even in respect of allegations of corrupt practice, but full particulars and if they are lacking, the petition can be permitted to be amended or amplified under section 86 of the act. ..... to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. .....
Tag this Judgment!Court : Mumbai Aurangabad
..... in this view of the matter, it is clear that the amending act would also come under protective umbrella of article 31-a, and hence the same cannot be challenged as violative of articles 14 and 19 of the constitution of india. ..... second proviso and it stipulates that person applying for return of land after 90 days from commencement of maharashtra agricultural lands (ceiling on holdings)(amendment) act, 2001, is not eligible for return of such land. ..... , annexed to the petition at exhibit "l" be declared ultra virus of the constitution of india and it be accordingly struck down; (f) pending hearing and final disposal of this petition, the execution, implementation, operation of the act no.1 of 2012 namely maharashtra agricultural lands (ceiling on holdings) act, 2011, as published in government gazette dated 2nd of february 2012 annexed to the present petition at exhibit "l" be stayed; (g) ad interim relief in terms of prayer clause (f) may kindly be granted; (h) any other just and equitable ..... he submits that defence of respondents that amendment effected in 2006 or in 2011 are only procedural and integral parts of agrarian reforms, is misconceived. 13. ..... he has invited our attention to pleadings in said civil application to show how distribution or return of land is being arbitrarily done. ..... he submits that in this background, defence in reply, that assent of president was not required, is erroneous. ..... a defence of or a finding of no injury , no legal right , res-judicata or no merit etc. .....
Tag this Judgment!Court : Mumbai Aurangabad
..... emerges from the aforesaid decision that appropriate orders in exercise of powers under the code of civil procedure can be passed if the mandatory requirements enjoined by section 83 of the act to incorporate the material facts in the election petition are not complied with. ..... , absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. ..... it is stated that petitioner has undertaken a careful study and he, in his representation dated 24.10.2009 to the returning officer, has expressed apprehension about manipulation in evms by the returning officer to 85- ..... , observed that the law does not require material particulars even in respect of allegations of corrupt practice, but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under section 86 of the act. ..... not require material particulars even in respect of allegations of corrupt practice, but full particulars and if they are lacking, the petition can be permitted to be amended or amplified under section 86 of the act. ..... to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment . .....
Tag this Judgment!Court : Mumbai Aurangabad
..... code does not impose any ceiling the desired object can be achieved by the following: (i) courts levying costs, following the result, in all cases (non-levy of costs should be supported by reasons); and (ii) appropriate amendment to civil rules of practice relating to taxation of costs, to make it more realistic in commercial litigation. " 26. ..... vide this petition, has impugned order dated 2.8.2007 passed by the learned ii joint civil judge (senior division), jalgaon in special darkhast no.105 of 2007 below exhibit 7 ..... present system of levying meager costs in civil matters (or no costs in some matters), is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation borne out of ego or greed, or resorted to as a `buying-time' tactic and that a more realistic approach relating to costs may be the ..... , learned lower court has issued an attachment warrant under order xxi rule 54 of the code of civil procedure (for the sake of brevity, hereinafter, referred to as "the code"). 4. ..... costs is intended to achieve the following goals: (a) it should act as a deterrent to vexatious, frivolous and speculative litigations or defences. ..... (b) costs should ensure that the provisions of the code, evidence act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics ..... ram kumar gupta [(2009} 2 scc 656 ] the honourable apex court has pointed ..... this petition has been deleted by the petitioner on 24.7.2009 itself. .....
Tag this Judgment!Court : Mumbai Aurangabad
..... the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in ..... it has been registered : provided that an unregistered document affecting immovable property and required by this act or the transfer of property act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under chapter ii of the specific relief act, 1877 (3 of 1877), or as evidence of part performance of a contract for the purposes of section 53a of the transfer of property act, 1882, (before amendment of year 2001) or as evidence of any collateral transaction not required to be effected by ..... the question arises as to whether the defendant can take a defence in such a case that there was no notice of termination ..... filed against the judgment and decree of special civil suit no.8/2001 (old special civil suit no.232/1995) which was pending in the court of the civil judge, senior division, ahmedpur, district latur. ..... the defence of the defendant that it has right to purchase the suit property and there was agreement between it and the liquidator, can be used .....
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