Civil Procedure Code, 1908
Section 11—Bar of res Judicata—In order to decide the question whether a subsequent proceeding is barred by res judicata, it is necessary to examine the question with reference to : (i) the form or a competence of the Court; (ii) the party and the representatives; (iii) matters in issue; (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision—In order that a defence of res judicata may succeed, it is necessary to not only show that the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the subsequent proceedings—Test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of earlier suit or proceedings.
[Para 154]
Section 151—Inherent powers—When the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the Court can come to its aid for doing real and substantial justice between the parties.
[Para 81]
Section 152—Amendment of judgments, decrees or orders—Provision of Section 152 CPC is based on two principles, namely, that the act of court should not prejudice any party and that the courts have the duty to see that records are true and present the correct state of affairs—Basis of provision under Section 152 of CPC is founded on maxim “actus curiae niminem gravabit”, i.e. an act of Court shall not prejudice no man—A broad view must be taken of provisions of Section 152 CPC as the procedural laws are primarily meant to do justice between the parties, thus, if any mistakes that have crept are capable of being rectified and answer the description of mistakes enumerated in Section 152 CPC—In Section 152 the Court should normally be inclined to rectify such mistakes and do justice between the parties.
[Paras 84, 85 & 104]
Order 1 Rule 9—Misjoinder and non-joinder of necessary party—Question as to non-joinder of necessary party and mis-joinder of first defendant as a party in the suit has to be raised by the appellant by filing written statement and once the issues are settled under Order XIV the Court below will proceed to decide the same—Plea taken by the appellant as to non-joinder of necessary party cannot be taken into consideration, and only after the issue in regard to the same is decided by the court below, the same can be dealt with.
[Para 144]
Order 14—Framing of issues—Question of limitation is a mixed question of law and fact—Once the appellant has not filed his written statement and issues have not been framed, the court cannot go into the such question leaving it open to the appellant to raise such question when the issues are framed.
[Para 143]
Constitution of India, 1950
Article 25—Right to religion—A citizen right guaranteed under Article 25 cannot be taken away by arbitrary action of State.
[Para 128]
Gyanvapi Mosque Matter
Order directing the District Magistrate/Receiver for arranging worship and rituals by priest appointed by plaintiff and Shri Kash Vishwanath Trust Board in tehkhana (cellar)—Submission that final relief cannot be granted in a suit at initial stage, when neither issues have been framed, nor written statement has been filed and evidences are yet to be led by the parties—Order impugned stands covered under powers of court given in Section 151 and 152 of CPC, as it is neither reviewing the order, nor the court under the guise of invoking Section 152 is granting any further relief after the result was rendered earlier—Both the action of the court appointing receiver and adding relief subsequently by another order are the issues intertwined and are decided on the basis of reasons—No illegality or mistake committed by court below while appointing receiver under Order 40 Rule 1 of CPC and, thereafter, directing for arranging worship in Vyas Ji tehkhana (celler) in view of application having been allowed earlier and forming part of the earlier order.
[Paras 97, 163 & 164]