MIS. SHIV COTEX versus TIRGUN AUTO PLAST P. LTD. & ORS.

Citation: [2011] 10 S.C.R. 787 · Decided: 30-08-2011 · Supreme Court of India · Bench: AFTAB ALAM · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2011) 10 S.C.R. 787 
MIS. SHIV COTEX 
v. 
TIRGUN AUTO PLAST P. LTD. & ORS. 
{Civil Appeal No. 7532 of 2011) 
AUGUST 30, 2011 
[AFTAB ALAM AND R.M. LODHA, JJ.] 
CODE OF CIVIL PROCUDEURE, 1908: 
A 
B 
s. 100 - Second appeal - High court deciding the second c 
appeal without formulating a question of law - Held: The High 
Court failed to keep in view the constraints of second appeal 
and overlooked the requirement of the second appellate 
jurisdiction as provided ins. 100 and that vitiates its decision. 
0. 17 rr. 1and3 (a) r!W. s. 100-Adjournments- Plaintiff D 
failed to produce evidence on three dates -
Trial court 
proceeded in terms of r. 3 and dismissed the suit - First 
appellate court dismissed the appeal - However, High Court 
allowed the second appeal of the plaintiff and directed the trial 
court to decide the suit afresh - Held: The High Court upset 
E 
the concurrent judgments and decrees of the two courts on 
misplaced sympathy and non-existent justification observing 
that the stakes in the suit were very high - After the issues 
were framed, on three occasions, the trial court fixed the 
matter for the plaintiffs evidence but on none of these dates 
F 
any evidence was let in by it - Plaintiff deserved no sympathy 
in second appeal in exercise of power u/s 100 CPC. 
0.17 - r.1, proviso-Adjournments- Held: It is high time 
that courts become sensitive to delays in justice delivery G 
system and realize that adjournments do dent the efficacy of 
judicial process - The courts, particularly trial courts, must 
ensure that on every date of hearing, effective progress takes 
place in the suit -
Though the court may grant more than 
787 
H 
788 
SUPREME COURT REPORTS 
[2011) 10 S.C.R. 
A three adjournments to a party for its evidence but ordinarily 
the cap provided in the proviso to 0. 17, r. 1 should be 
maintained - 'Justifiable cause', means, a cause which is not 
only 'sufficient cause' as contemplated in sub-r. (1) of r.1 but 
a cause wMch makes the request for adjournment by a party 
e during the hearing of the suit beyond three adjournments 
unavoidable and sort of a compelling necessity - Guiding 
factors, indicated - Administration of justice - Adjournments. 
Respondent No.2, the Punjab Financial Corporation 
(the Corporation), in exercise of its power u/s 29 of the 
C State Financial Corporations Act, 1951, took over the 
mortgaged property of respondent no.1 company as it 
had failed to pay the amounts due to the Corporation. 
Respondent no. 1 filed a suit. for declaration and 
mandatory injunction in the Court of Civil Judge (Junior 
D Division), praying, inter alia, that the take over of its assets 
and all subsequent sale proceedings by the Corporation 
be declared illegal, null and void and that the Corporation 
be also directed to restore back the possession of the 
suit property to it. The trial court framed issues and fixed 
E 1.11.2006 for evidence of the plaintiff. The plaintiff did not 
adduce any evidence even on the subsequent dates, i.e., 
2.3.2007 and 10.5.2007. The trial court then proceeded 
under 0. 17 r. 3(a), C.P.C. and dismissed the suit in post 
lunch session on 10.5.2007. Thereafter the Corporation 
F sold the mortgaged property by auction to the appellant 
for Rs. 64.60 lac. The plaintiff filed a civil appeal in the 
Court of Additional District Judge. Subsequently, the 
application for impleadment of the appellant-auction 
purchaser and its partners was allowed. The appeal was 
G dismissed. However, the second appeal filed by the 
plaintiff was allowed and the suit was remanded to the 
trial court for decision afresh. Aggrieved, the auction 
purchaser filed the appeal. 
H 
Allowing the appeal, the Court 
SHIV COTEX v. TIRGUN AUTO PLAST P. LTD. & 
789 
ORS. 
HELD: 1. Firstly, the High Court, while deciding the 
A 
second appeal, failed to adhere to the necessary 
requirement of s. 100 CPC and interfered with the 
concurrent judgments and decrees of the courts below 
without formulating any substantial question of law. The 
High Court failed to keep in view the constraints of B 
second appeal and overlooked the requirement of the 
second appellate jurisdiction as provided in s. 100 CPC 
and that vitiates its decision. [para 13-14] [794-D-H; 795-
G-H] 
Umerkhan v. Bismillabi@ Babula/ Shaikh and Ors. 2011 
(9) sec 684 - relied on. 
c, 
2.1. Second, and equally important, the High Court 
upset the concurrent judgments and decrees of the two 
courts on misplaced sympathy and non-ex

Excerpt shown. Read the full judgment & AI analysis in Lexace.