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specific performance of an agreement of re-conveyance of the suit land. is not maintainable =The District Court also held that Ex-18, the alleged agreement of re-conveyance did not mention that there was a loan transaction between the parties and that Ex-19, the sale deed was not to be acted upon. It did not mention the date and period within which the suit land was to be re-conveyed after payment of the loan amount. Therefore, the case that Ex-19 was a nominal sale deed cannot be accepted. = Ex-19 is a genuine sale deed. It clearly speaks of an out and out sale. We have stated that Ex-18 is not an agreement to re- convey the land on repayment of loan. The sale deed [Ex-19] is clearly worded leaving no scope of ambiguity. So far as Ex-18 is concerned, it is so worded as not to establish any link with Ex-19. It does not speak of any loan transaction at all. Though there is no ambiguity in Ex-19 and we are certain that the transaction in question is a genuine sale transaction, to lend support to our conclusion we may touch upon the surrounding circumstances. If Ex-18 was to be an agreement for re-conveyance, it would not have been titled as ‘Receipt’. It would have been signed by the original plaintiff and the defendant. It is pertinent to note that it is signed only by the defendant. It is executed on a simple paper. It does not state within what time the amount was to be repaid and the agreement of repurchase was to be executed. It is also important to note that in the cross-examination, original plaintiff has clearly admitted that Ex- 18 was executed before execution of sale deed [Ex-19]. Hence, the original plaintiff’s case that the defendant insisted that he would lend money to him only if he would execute nominal sale deed and, therefore, the nominal sale deed was executed and the loan was advanced, does not stand to reason. The District Court has rightly said that at the most it could be said that Ex-18 culminated into a genuine sale deed [Ex-19]. The original plaintiff’s case that the transaction of sale was followed by agreement for re-transfer is not substantiated. It is also hit by Section 58(c) of the Transfer of Property Act which this Court analyzed in Chunchun Jha and stated that if sale and agreement for re-purchase are embodied in separate deeds then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. Here we clearly have two separate documents. Similar view has been taken by this Court in Raj Kishore v. Prem Singh[3]. The High Court, therefore, clearly erred in holding that there was an agreement for re-conveyance and the original plaintiff was entitled to specific performance thereof.- In the result, the appeal is allowed. The impugned order dated 20/7/2004 is set aside. The judgment and order dated 12/3/1986 passed by the District Judge, Buldana in Regular Civil Appeal No.130 of 1983 is restored.
‘ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1648 OF 2006 DASHRATH KACHRU KAKDE … APPELLANT Versus VIKRAM S/O. DHONDU AWHALE …RESPONDENT (DECEASED) T… more →
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specific performance of an agreement of re-conveyance of the suit land. is not maintainable =The District Court also held that Ex-18, the alleged agreement of re-conveyance did not mention that there was a loan transaction between the parties and that Ex-19, the sale deed was not to be acted upon. It did not mention the date and period within which the suit land was to be re-conveyed after payment of the loan amount. Therefore, the case that Ex-19 was a nominal sale deed cannot be accepted. = Ex-19 is a genuine sale deed. It clearly speaks of an out and out sale. We have stated that Ex-18 is not an agreement to re- convey the land on repayment of loan. The sale deed [Ex-19] is clearly worded leaving no scope of ambiguity. So far as Ex-18 is concerned, it is so worded as not to establish any link with Ex-19. It does not speak of any loan transaction at all. Though there is no ambiguity in Ex-19 and we are certain that the transaction in question is a genuine sale transaction, to lend support to our conclusion we may touch upon the surrounding circumstances. If Ex-18 was to be an agreement for re-conveyance, it would not have been titled as 'Receipt'. It would have been signed by the original plaintiff and the defendant. It is pertinent to note that it is signed only by the defendant. It is executed on a simple paper. It does not state within what time the amount was to be repaid and the agreement of repurchase was to be executed. It is also important to note that in the cross-examination, original plaintiff has clearly admitted that Ex- 18 was executed before execution of sale deed [Ex-19]. Hence, the original plaintiff's case that the defendant insisted that he would lend money to him only if he would execute nominal sale deed and, therefore, the nominal sale deed was executed and the loan was advanced, does not stand to reason. The District Court has rightly said that at the most it could be said that Ex-18 culminated into a genuine sale deed [Ex-19]. The original plaintiff's case that the transaction of sale was followed by agreement for re-transfer is not substantiated. It is also hit by Section 58(c) of the Transfer of Property Act which this Court analyzed in Chunchun Jha and stated that if sale and agreement for re-purchase are embodied in separate deeds then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. Here we clearly have two separate documents. Similar view has been taken by this Court in Raj Kishore v. Prem Singh[3]. The High Court, therefore, clearly erred in holding that there was an agreement for re-conveyance and the original plaintiff was entitled to specific performance thereof.- In the result, the appeal is allowed. The impugned order dated 20/7/2004 is set aside. The judgment and order dated 12/3/1986 passed by the District Judge, Buldana in Regular Civil Appeal No.130 of 1983 is restored.
wrote 5 hours ago: ‘ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1648 OF 2006 DAS … more →
Section 376(2) (f) of the Indian Penal Code= the victim is an eight year old girl who possibly would be deprived of the dreams of “Spring of Life” and might be psychologically compelled to remain in the “Torment of Winter”. When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned counsel for the appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, 22Page 23 hence, we sustain the judgment of conviction and the order of sentence passed by the High Court. 23. Ex consequenti, the appeal, being sans merit, stands dismissed.
wrote 15 hours ago: Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. … more →
Non- framing of charge cause no prejudice = In the case at hand, the basic ingredients of the offence under Section 306 IPC have been established by the prosecution inasmuch as the death has occurred within seven years in an abnormal circumstance and the deceased was meted out with mental cruelty. Thus, we convert the conviction from one under Section 304B IPC to that under Section 306 IPC. As the accused has spent almost five years in custody, we limit the period of sentence to the period already undergone.= It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day.- "We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the presiding officers of the trial courts and it can be reformed by everyone provided the presiding officer concerned has a commitment towards duty."= "Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking."= Recently, in Akil @ Javed v. State of Delhi[17], the Court, after surveying the earlier pronouncements, has stressed on the compliance of the procedure and expressed its anguish that the trials are not strictly adhering to the procedure prescribed under the provisions contained in Section 231 along with Section 309 of the CrPC, and further emphasised that such adherence can ensure speedy trial of cases and also rule out the possibility of any maneuvering taking place by granting undue long adjournment for mere asking.- We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties.- It needs no special emphasis to state that dispensation of criminal justice system is not only a concern of the Bench but has to be the concern of the Bar. - An advocate cannot afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges for procrastinating the same. 35. Consequently, the appeal is partly allowed and the appellant be set at liberty if his detention is not required in connection with any other case. '
wrote 2 days ago: ‘ IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 744 OF 201 … more →
GIFT = WILL = SETTLEMENT DEED = whether a document can be treated as a gift where the executor reserves his interest of maintenance throughout his life with certain other conditions or will or rather a mere settlement of its own kind.= Thus, Section 122 defines 'gift' as gift inter vivos or an absolute gift. An absolute gift, (which is the subject matter under the Act, 1882) or gift inter vivos as distinguished from a testamentary gift or one made in contemplation of death, is one by which the donee becomes in the lifetime of the donor, the absolute owner of the thing given. Further, in case of a gift the provision becomes operative immediately and under transfer in praesenti is intended and comes into effect.= In terms of Section 122 of the Act 1882, it is necessary that there should be vesting of interest forthwith, though possession and enjoyment of the property may be postponed to a later date. Even if a document is styled and registered as a settlement deed containing the recital of devolution of interest in the properties to vest on the death of a settler after his life time, such a document may be termed only as a 'Will' and not 'gift deed'. 7. The fact that the document purports to reserve a life interest in the property to the donor with certain other terms is a 'Will'. = "Settlement Deed" executed in 1922 is neither a `Will' nor a gift. However, it did not transfer the title in favour of the second party therein. The executor of the said settlement deed sold the land to the respondents for consideration. The sale deed was valid and appellants could not claim any benefit under the said settlement deed, the title did not vest in favour of their predecessors in interest.
wrote 3 days ago: ‘ The Gift of Time (Photo credit: Wikipedia) IN THE SUPREMECOURT OF INDIA CIVIL … more →
a complaint against the respondents alleging commission of offences punishable under Sections 468 and 471 of the IPC. Crime No.41/10 was accordingly registered in the Central Crime Branch, Chennai Suburban, St. Thomas Mount for the said offences against respondents 2, 3 and 4. Aggrieved, the respondents filed Criminal O.P. No.15917 of 2010 for quashing of the FIR as also investigation in connection therewith =suit based on two forged sale deeds = In Iqbal Singh Marwah's case (supra) a Constitution Bench of this Court had authoritatively declared that Section 195(1)(b)(ii) Cr.P.C. was attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in any court and during the time the same was in custodia legis.= It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records.- The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court."- the bar contained in Section 195 against taking of cognizance was not attracted to the case at hand as the sale deeds relied upon by GWL for claiming title to the property in question had not been forged while they were in custodia legis.= In the light of the above, the High Court was wrong in quashing the FIR on the ground that the allegations did not constitute an offence even when the same were taken to be true in their entirety. It was also, in our view, wrong for the High Court to hold that the respondents were not the makers of the documents or that the filing of a civil suit based on the same would not constitute an offence. Whether or not the respondents had forged the documents and if so what offence was committed by the respondents was a matter for investigation which could not be prejudged or quashed by the High Court in exercise of its powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India.
wrote 3 days ago: ‘ ITEM NO. Judgment Court No.10 SECTION IIA Statue of Manu Needhi Cholan in the … more →
Complainants- Respondent Nos.2 and 3 have filed complaint being C.R. Case No.71C/2012 on 15.03.2012 before the Chief Judicial Magistrate, Dibrugarh under Section 417 and 420 I.P.C., for taking appropriate criminal action against respondent No.4, who was accused in the complaint, and also against the Manager, United Bank of India as well as the Regional Manager of the Bank.- The Complainant, however, stated before the High Court that he had purchased the property somewhere in the year 2005. However, that is not reflected in the legal opinion given by the advocate to the Bank. We are of the view that the Bank has acted bona fide on the report of the advocate after searching the relevant records for the last 12 years. Further, we have also perused the complaint filed by respondent Nos.2 and 3 and found no indication in the complaint as against any of the officers of the Bank that they have acted in their individual capacity or otherwise so as to cheat the complainant. If at all there is any grievance that is against respondent no.4. In such circumstances, we are inclined to allow the appeal and quash the criminal complainant as far as the Bank and the officials are concerned.
wrote 4 days ago: ‘ IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRL.M.P. NO.10983/2013 IN AND … more →
FRAUDULENTLY OBTAINED DISCHARE FROM CRIMINAL CASE = “court is not a laboratory where children come to play”. The action of the accused-respondent depicts the attitude where one calculatedly conceives Page 2 the concept that he is entitled to play a game of chess in a court of law and the propriety, expected norms from a litigant and the abhorrence of courts to the issues of suppression of facts can comfortably be kept at bay. Such a proclivity appears to have weighed uppermost in his mind on the base that he can play in aid of technicalities to his own advantage and the law, in its essential substance, and justice, with its divine attributes, can unceremoniously be buried in the grave. = The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. The High Court, as we have seen, applied the principle “when infrastructure collapses, the superstructure is bound to collapse”. However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand. That apart, we have dealt with regard to the legal sustainability of the order in detail. Under these circumstances, we are disposed to think that the power under Article 142 of the Constitution is required to be invoked to do complete justice between the parties. Cognizance of the offences had been rightly taken by the learned Magistrate and charges, as we find, have been correctly framed by the learned trial Judge. A victim of a crime has as much right to get justice from the court as an accused who enjoys the benefit of innocence till the allegations are proven against him. when an order of quashment of summons has been obtained by suppression, this Court has an obligation to set aside the said order and restore the order framing charges and direct the trial to go on. And we so direct.= Consequently, the appeal is allowed, the order passed by the High Court in Criminal Revision No. 327 of 2011 and the order passed by the learned Additional District and Sessions Judge, No.1, Jodhpur, in Criminal Revision No. 7 of 2009 are set aside and it is directed that the trial which is pending before the learned Additional District and Sessions Judge, No. 3, Jodhpur, shall proceed in accordance with law.
wrote 6 days ago: Page 1 Umaid Bhawan, Jodhpur. (Photo credit: Wikipedia) Reportable IN THE SUPREME COUR … more →
An application for modification/clarification of a final order passed by this Court is not contemplated by the provisions of the Supreme Court Rules, 1966 which specifically provides the remedy of review and also lays down the procedure governing the consideration of a review application by this Court. In fact, filing of such applications for modification has been deprecated by this Court in Delhi Administration Vs. Gurdip Singh Uban & Ors. [(2000) 7 SCC 296] and A.P. SRTC & Ors. Vs. Abdul Kareem [(2007) 2 SCC 466].= the suit for specific performance filed by the plaintiffs 1 (since deceased), 2 and 3 was decreed in the following terms :- “30....We are of the further view that the sale deed that will now have to be executed by the defendants in favour of the plaintiffs will be for the market price of the suit property as on the date of the present order. As No material, whatsoever is available to enable us to make a correct assessment of the market value of the suit property as on date we request the learned trial judge of the High Court of Delhi to undertake the said exercise with such expedition as may be possible in the prevailing facts and circumstances.= they are ready and willing to offer an amount of Rs.6 crores for the property as against the sum of Rs.3.75 lakhs as mentioned in agreement dated 22.12.1970 has been specifically recorded.- It is the aforesaid “offer” made on behalf of the appellants/plaintiffs that had led to the direction in question inasmuch as no material was available to Court to find out as to whether the offered amount of Rs.6 crores was, in any way, indicative of the market value of the property. It is in such a situation that the direction to execute the sale deed at the market price and the request to the learned Trial Judge to determine the same came to be recorded in the judgment dated 3.12.2012. It is, therefore, clear that we did not intend to lay down any law of general application while issuing the direction for execution of the sale deed at the market price as on the date of the judgment i.e. 3.12.2012. The exercise by the learned Trial Judge in terms of our judgment dated 3.12.2012 is yet to be made. The aforesaid determination, naturally, will be made by the learned single Judge only after affording an opportunity to all the affected parties and after taking into account all relevant facts and circumstances. Furthermore, any party aggrieved by such determination will be entitled to avail of such remedies that may be open in law to such a party. In view of the above, we do not deem it to be necessary to cause any variation or modification in the aforesaid direction contained in our judgment dated 3.12.2012. 21. Accordingly, I.A. Nos. 12-13 of 2013 shall stand disposed of in the above terms.
wrote 1 week ago: Page 1 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. NOS. 3-5 & I.A. D.No. 3 … more →
Code of Civil Procedure, 1908 - Suit in civil court for recovery of possession of agricultural land - Maintainability of - Held: Maintainable as neither plaintiff nor defendant claimed or admitted that there was relationship of landlord and agricultural tenant between them - Plaintiff's case was that defendant was trespasser and case of defendant was that he was owner and was never tenant of suit land either under plaintiff or anyone else - Since suit was not for eviction of agricultural tenant, s.13 of 1956 Act not attracted - Andhra Pradesh (Andhra Areas) Tenancy Act, 1956 - ss.13, 16. Adverse possession - Suit for possession - Claim by defendant that he had perfected his title by adverse possession and suit was not maintainable for want of prayer for declaration of title - Held: Mere claim of adverse possession by defendant, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title - Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration - On facts, plaintiff had title and she only wanted possession and, therefore, suit for possession was maintainable. The respondent-plaintiff claiming herself to be the owner of certain agricultural land under a sale deed dated 10.4.1957 and alleging the appellant as trespasser, filed suit against him for possession of the suit land. The defendant denied the title of the plaintiff and claimed to have perfected his title by adverse possession. His case was that the sale deed dated 10.4.1957 was a nominal deed as was evident from an agreement dated 18.1.1959 executed by the plaintiff and; that since the plaintiff had stated in the plaint that she had leased out the land to him, she should have filed petition before the Revenue Court under the Andhra Pradesh (Andhra Areas) Tenancy Act, 1956. The Trial Court decreed the suit and the High Court affirmed the decree. In the instant appeal filed by the defendant, the questions for consideration before the Court were: (i) whether the plaintiff's suit for possession in the civil court was not maintainable and whether the remedy was only by way of an eviction petition under s.13 of the Act; (ii) whether the suit was not maintainable for want of a prayer for declaration of title; (iii) whether the concurrent findings of fact recorded by the trial court and High Court that plaintiff was the owner of the suit property and that defendant had not made out title by adverse possession call for interference. Citation: 2008(11 )SCR849 ,2008(11 )SCALE160 ,2008(9 )JT295= Dismissing the appeal, the Court HELD: 1.1. Section 13 of Andhra Pradesh (Andhra Areas) Tenancy Act, 1956 requires an application to be made to the Special Officer under the Act only when a landlord wants to terminate the tenancy and evict his cultivating tenant and not otherwise. Termination of tenancy and eviction petition under s.13(e) are contemplated only where (a) the defendant is the cultivating tenant; and (b) the defendant wilfully denies the landlord's title to the land. [Para 10, 11] [858 B-C, E & F] 1.2. It is true that in the instant case, the plaintiff had averred in the plaint that the defendant was closely related to her and on her request, she had leased the suit land to him in the year 1971. But the plaintiff further specifically alleged that the defendant had denied her title and claimed title in himself, and he had also denied the relationship of `landlord and tenant'; and that therefore, the defendant was a trespasser and she was entitled to sue for possession to evict the `trespasser'. The averment in the plaint should be read as a whole. If so done, it is clear that plaintiff claims that defendant is a trespasser in the suit land. Significantly, the defendant in his written statement did not allege that he was the cultivating tenant of the suit land either under the plaintiff or anyone else. On the other hand, he denied the title of plaintiff and asserted ownership and title in himself by adverse possession. Thus neither the plaintiff nor the defendant claimed or admitted that there was relationship of landlord and agricultural tenant between them. Consequently tenancy was not an issue in the suit nor was the suit for eviction of an agricultural tenant. Therefore Section 13 of the Act was not attracted. [Para 10] [857 E,F,G,H] 1.3. Mere denial of the title of the plaintiff by the defendant in respect of an agricultural land would not mean that only the authorities under the Act will have jurisdiction and that plaintiff should sue for eviction under the Act by approaching the Special Officer. Only a civil suit was the remedy to obtain possession from a trespasser. Further, to attract Section 16 of the Act, the person approaching the Special Officer should contend that he is either a landlord or a cultivating tenant, and admit the existence of the relationship of landlord and cultivating tenant between the parties. S.16 is only a provision enabling a landlord or cultivating tenant to approach the Special Officer for settlement of any dispute arising under the Act and it does not operate as a bar for a suit by an owner against a trespasser. [Para 11, 13] [859 B,C & 860-E,F] Abdulla Bin Ali v. Galappa 1985 (2) SCC 54 - relied on. D. Venkata Reddy v. B.Bhushireddy AIR (1971) A.P. 87 - referred to. 2.1. A mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. Plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable. [Para 14] [861 B,C,D] Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. & Ors. (2008) 4 SCC 594 - relied on. 2.2. Both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to defendant, plaintiff was not the true owner, his possession hostile to plaintiff's title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and High Court also held that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession. [Para 17] [862 E,F,G] 3. The trial Court and the High Court have concurrently held that (i) plaintiff had established her title to the suit land by purchase under sale deed dated 10.4.1957; (ii) the sale in favour of plaintiff was not nominal as alleged by defendant; (iii) the agreement dated 18.4.1959 put forth by defendant was a fabricated document; and (iv) the defendant had failed to establish title by adverse possession. Both the courts have considered the issues of fact in detail with reference to the evidence and recorded concurrent findings against the defendant. Neither any perversity nor omission to consider evidence nor any error of law has been pointed out with reference to consideration and appreciation of evidence by the trial court and the High Court. [Para 6 and 18] [855 F,G 862,H, 863-A,B] Case Law Reference 1985 (2) SCC 54 relied on Para 12 AIR (1971) A.P. 87 referred to Para 13 (2008) 4 SCC 594 relied on Para 14 Ravindra Shrivastava and A.T.M. Ranga Ramanujam, Kunal Verma, Rajul Shrivastav, Supriya Jain, K. Krishna Kumar, Anup Jain, P.R.K. Amarendra Kumar, Anu Gupta and Rami Jethmalani for the Appellant. P.S. Narasimha, M. Srinivas R. Rao, Abid Ali Beera P. And Sudha Gupta for the Respondent.
wrote 1 week ago: Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4788 OF 2008 ( … more →
Suit - Eviction suit - Issue regarding title between parties - Recording of finding in favour of plaintiff - Subsequent suit for declaration of title and recovery of possession between the same parties - Effect of earlier suit on the subsequent suit - Held: Finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties - Question of title was directly and substantially in issue between the parties in the earlier suit - Res judicata. The plaintiff, mother of the respondents, filed a suit for eviction against the defendant, father of the appellants. The issues were framed regarding the plaintiff's claim to the title over the suit property and the relationship of landlord and tenant between the parties. The trial court upheld the plaintiff's claim to the title but did not grant decree of eviction since the relationship of landlord and tenant was not established between the parties. The appellate court affirmed the order of the trial court. Thereafter, the plaintiff filed another suit against the defendant seeking declaration of title over the property and recovery of its possession from the defendant. The trial court decreed the suit. The defendant filed an appeal and the same was allowed. Thereafter, the plaintiff died and her legal representatives-respondent filed the second appeal. The High Court set aside the judgment and the decree passed by the first appellate court and restored the judgment and the decree of the trial court. Therefore, the appellants filed the instant appeal.= Dismissing the appeal, the Court HELD: The issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction court. The question of title was directly and substantially in issue between the parties in the earlier suit for eviction. Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties. [Para 17] [740-D-F] Pardip Singh vs. Ram Sundar Singh AIR (36) 1949 Patna 510 - approved. Shamim Akhtar v. Iqbal Ahmad and ANOTHER (2000) 8 SCC 123; Sajjadanashin Sayed Md.B.E.Edr.by L.Rs.(D) vs, Musa Dadabhai Ummer and Ors. (2000) 3 SCC 350 - referred to. Case Law Reference: (2000) 8 SCC 123 Referred to. Para 14 (2000)3 SCC 350 Referred to. Para 15 AIR (36) 1949 Patna 510 approved. Para 15 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2579 of 2004. From the Judgment & Order dated 24.05.2002 of the High Court of Judicature at Patna in Appeal from appellate decree No. 236 of 1987. H.L. Agarwal, Gaurav Agrawal, Dr. Kailash Chand for the Appellates. Seema Kashyap, S.K. Sinha for the Respondents.
wrote 1 week ago: REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2579 OF 2004 M … more →
compounding of offence under Section 211(7) of the Companies Act.= Now the question is whether in the aforesaid circumstances the Company Law Board can compound offence punishable with fine or imprisonment or both without permission of the court. It is pointed out that when the prosecution has been laid, it is the criminal court which is in seisin of the matter and it is only the magistrate or the court in seisin of the matter who can accord permission to compound the offence.= “621A. Composition of certain offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act whether committed by a company or any officer thereof, not being an offence punishable with imprisonment only, or with imprisonment and also with fine, may, either before or after the institution of any prosecution, be compounded by- (a) the Company Law Board; or (b) where the maximum amount of fine which may be imposed for such offence does not exceed five thousand rupees, by the Regional Director, on payment or credit, by the company or the officer, as the case may be, to the Central Government of such sum as that Board or the Regional Director, as the case may be, may specify: Provided that the sum so specified shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offence so compounded: Provided further that in specifying the sum required to be paid or credited for the compounding of an offence under this sub-section, the sum, if any, paid by way of additional fee under Sub-section (2) of Section 611 shall be taken into account. xx xx xx (4)(a) Every application for the compounding of an offence shall be made to the Registrar who shall forward the same, together with his comments thereon, to the Company Law Board or the Regional Director, as the case may be. (b) Where any offence is compounded under this section, whether before or after the institution of any prosecution, an intimation thereof shall be given by the company to the Registrar within seven days from the date on which the offence is so compounded. (c) Where any offence is compounded before the institution of any prosecution, no prosecution shall be instituted in relation to such offence, either by the Registrar or by any shareholder of the company or by any person authorised by the Central Government against the offender in relation to whom the offence is so compounded. (d) Where the composition of any offence is made after the institution of any prosecution, such composition shall be brought by the Registrar in writing, to the notice of the Court in which the prosecution is pending and on such notice of the composition of the offence being given, the company or its officer in relation to whom the offence is so compounded shall be discharged. xx xx xx (7) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) any offence which is punishable under this Act with imprisonment or with fine, or with both, shall be compoundable with the permission of the Court, in accordance with the procedure laid down in that Act for compounding of offences; (b) any offence which is punishable under this Act with imprisonment only or with imprisonment and also with fine shall not be compoundable. (8) No offence specified in this section shall be compounded except under and in accordance with the provisions of this section.”= The legislature in its wisdom has not put the rider of prior permission of the court before compounding the offence by the Company Law Board and in case the contention of the appellant is accepted, same would amount to addition of the words “with the prior permission of the court” in the Act, which is not permissible. As is well settled, while interpreting the provisions of a statute, the court avoids rejection or addition of words and resort to that only in exceptional circumstances to achieve the purpose of Act or give purposeful meaning. It is also a cardinal rule of interpretation that words, phrases and sentences are to be given their natural, plain and clear meaning. When the language is clear and unambiguous, it must be interpreted in an ordinary sense and no addition or alteration of the words or expressions used is permissible. As observed earlier, the aforesaid enactment was brought in view of the need of leniency in the administration of the Act because a large number of defaults are of technical nature and many defaults occurred because of the complex nature of the provision. From what we have observed above, we are of the opinion that the power under sub-section (1) and sub-section (7) of Section 621A are parallel powers to be exercised by the Company Law Board or the authorities mentioned therein and prior permission of Court is not necessary for compounding the offence, when power of compounding is exercised by the Company Law Board. In view of what we have observed above, the order impugned does not require any interference by this Court. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs.
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contempt of court = Neither the High Court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of criminal proceedings in respect of the disputes, which are civil in nature and finally adjudicated by the competent authority i.e. the Company Law Board and the High Court in appeal. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law. Although we do not appreciate the action of a senior Superintendent of Police, but in view of the order passed in these appeals, we do not want to proceed any further in Contempt Petition (C) No.166 of 2013, which stands disposed of.
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SERVICE MATTER = the matter of integration or the fusion of employees, being one of policy, could not have been challenged by the employees unless the said decision was arbitrary, unreasonable or capricious.=The High Court was justified in quashing the Paras 6(iv) and (v) of the G.O.Ms. No.382. The seniority of the respondent has to be fixed in the cadre of Health Inspector Grade I by giving the benefit of service from 27th June, 1997. Further, they are eligible to be promoted on completion of 5 years service on the post of Health Inspector Grade I, though, they can be placed at the bottom of the seniority of serving Health Inspector Grade I as on 1st August, 1997. In our opinion, the High Court, in fact rightly quashed and set aside the offending clauses of 6(iv) and 6(v) of G.O. Ms. No. 382 dated 12th October, 2007.- At this stage, we may summarise the conclusions recorded by us in the following manner:- i. The integration of Leprosy Inspectors into the Department of Health and Preventive Medicine by G.O.Ms. No. 320 dated 27th June, 1997 was complete in all respects. ii. The aforesaid G.O. Ms. No. 320 dated 27th June, 1997 did not bring about an amendment in the Statutory Services Rules contained in G.O. Ms. No. 1507 dated 16th August, 1989. The G.O.Ms. was supplementary to the aforesaid Rules and did not supplant the same. iii. There was no relaxation in the educational qualification for the integration/re-designation of Leprosy Inspectors as Multi Purpose Health Supervisors as the post of Leprosy Inspector was equated with the post of Multi Purpose Health Supervisor. The qualifications prescribed for appointment on the post of Multi Purpose Health Assistants re-designated as Health Inspector Grade II were not applicable for the post of Multi Purpose Health Supervisor. iv. Since, there was a complete integration of the posts of Leprosy Inspector and Multi Purpose Health Supervisor by virtue of G.O.Ms. No. 320 dated 27th June, 1997; both categories were entitled to the same treatment. Therefore, Leprosy Inspectors re- designated as Health Inspector Grade IB were entitled to the pay-scale of Rs.1350-2000 w.e.f. 1st August, 1997 and the pay-scale of Rs.4500-7000 w.e.f. the same were given to Health Inspector Grade IA, with all consequential benefits. v. Upon integration vide G.O.Ms. No. 320 dated 27th June, 1997, Multi Purpose Health Supervisors and Leprosy Inspectors were to be re-designated as Health Inspector Grade I. The birth mark of the Leprosy Inspector got obliterated with the integration. There could be no further distinction in the cadre of Health Inspector Grade I. There could be no such division as Health Inspector Grade IA and Health Inspector Grade IB. vi. Since Paragraph 6(iv) and 6(v) of G.O.Ms. No. 382 dated 12th October, 2007 was in violation of Articles 14 and 16 of the Constitution of India, they have been correctly struck down by the High Court. vii. The denial of seniority to the re-designated Health Inspectors Grade IB, i.e., erstwhile Leprosy Inspectors on the post of Health Inspector Grade I w.e.f. 1st August, 1997 to 12th October, 2007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, re-designated as Health Inspector Grade IB are to be re-designated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions. viii. The provision contained in Clause 6(v) of G.O.Ms. No. 382 dated 12th October, 2007 denying promotion of the re-designated Health Inspector Grade I to the post of Block Health Supervisor and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor and Technical Personal Assistant, has been rightly held by the High Court to be violative of Articles 14 and 16 of the Constitution of India. ix. The continuance of the existing promotion channels as Non-Medical Supervisor and Health Educator to the re-designated Health Inspector grade I (erstwhile Leprosy Inspectors) did not amount to bestowing a double benefit upon this category. Therefore, the High Court did not enforce negative equality. The High Court has correctly observed that upon integration and merger into one cadre, the pre- existing length of service of the Leprosy Inspectors re-designated as Health Inspector Grade IB had to be protected as it can not be obliterated. Therefore, the Leprosy Inspectors have been correctly placed at the bottom of the seniority list of the already existing Health Inspectors Grade I w.e.f. 27th June, 1997. Therefore, it can not be said that benefit has been given to the Leprosy Inspectors /Health Inspector Grade IB /Health Inspector Grade I with retrospective effect.
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PURPOSE AND SCOPE OF SEC.313 Cr.P.C. EXAMINATION = the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.
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SAUGHT EXEMPTION FROM URBAN LAND CEILING FOR DONATION, LATER WITHDRAWN BY THE GOVT. AND LATER ALLOTTED THE SAME ON CONSIDERATION TO THE SAME PROPOSED DONEE UNDER SEC.23 [4] OF ACT, SO THE DONEE BECOMES ABSOLUTE OWNER BUT NOT DONEE= We are of the considered opinion that, since the Appellant-Society has become the absolute owner of the land by virtue of the order dated 13.02.2006 passed by the State Government, the Appellant- Society is at liberty to use the property in question to its benefit and advantage and the Writ Court, therefore, was not justified in making certain observations, which would come in the way of Appellant-Society in utilizing the land to its maximum advantage. 16. In the result, while allowing this appeal, we set aside the following observations made by the High Court in paragraph 9 of the impugned judgment and order: "...Accordingly, we can only direct M/s. Indo Arab league to strictly adhere to the laws applicable for the purpose of making any construction and as per the undertaking given by it in paragraph - 5 of their counter affidavit. The construction made also shall not be alienated in any manner, but have to be used only for cultural or religious purpose."
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MISTAKE OF FACT = The appellant challenged the order of punishment in Writ Petition No.2942 of 2010. He also filed an application for withdrawal of the suit which was allowed by the concerned Court on 23.02.2010. In paragraph 10 of the writ petition, the appellant disclosed the factum of pendency of the suit and averred that he had filed a writ petition questioning the order of punishment because the Civil Court had not granted injunction. However, the learned Single Judge dismissed the writ petition by assuming that the appellant had suppressed the fact relating to the suit filed in the Court of Civil Judge (Junior Division), Sonepat. The learned Single Judge relied upon the decision of this Court in Arunima Baruah vs. Union of India and others (2007) 6 SCC 120 and held that the appellant who was guilty of suppressing material facts was not entitled to relief under Article 226 of the Constitution.= Therefore, it must be held that the appellant had not suppressed the facts relating to the civil suit and dismissal of the application for temporary injunction and the learned Single Judge and the Division Bench of the High Court committed serious error by non-suiting him on the premise that he was guilty of not coming to the Court with clean hands. In the result, the appeal is allowed, the impugned order as also the one passed by the learned Single Judge are set aside and the writ petition filed by the appellant is restored to its original number. The High Court shall now decide the same on merits after giving opportunity of hearing to the parties. '
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murder case =version of P.W.3, the so-called eye-witness, that when the High Court chose to disbelieve his version, insofar as it related to the other three accused on the same reasoning, it ought to have acquitted the appellant as well.= when the presence of P.W.3 at the place of happening of the occurrence was thus fully established with the support of P.W.4, as rightly concluded by the trial Court, as well as, the High Court, the only other question was whether the rest of the statement made by P.W.3 merited any acceptance. In that respect, we find that the High Court made a close scrutiny of the version of P.W.3 and has found that he was a totally independent witness and he had no axe to grind against the appellant. In fact, his statement that he could not identify the other accused, as rightly held by the Division Bench of the High Court, was a very fair statement. When he also belonged to the same village, there was no reason for him to implicate the appellant alone. Therefore, the conclusion of the High Court that such a fair statement made by the witness, namely, P.W.3 cannot be used to totally erase his version, was perfectly justified. Further, because he did not make any attempt to go to rescue of the deceased cannot be put against the witness, inasmuch as when four persons were assaulting the deceased with dangerous weapons that too in the night hour in the present day set up, one cannot expect an unarmed person to get himself entangled and suffer unnecessary harm to himself. Moreover, the occurrence took place late in the light at around 9 pm and, therefore, prudence might have dawned upon him not to fall a cheap prey at the hands of such criminals who were already assaulting a person with a dagger and other weapons. Equally his conduct in having come back to the place of occurrence in the early morning at around 7.30 am along with P.W.4 only shows his earnestness in disclosing what he witnessed on the previous night to the police. The recoveries made at the instance of the appellants also fully supported the case of the prosecution.- We say so, since we are convinced that the version of P.W.3 was wholly reliable and there was no reason to doubt his version in order to apply the principles set out in the above referred decisions. 20. We, therefore, do not find any merit in this appeal. The appeal fails and the same is dismissed.
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motorcycle accident - personal injury = “The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v)Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity).= In the present case, the claim petition filed by the appellant claimed an amount of Rs.3,50,000/-, the Tribunal awarded Rs.1,94,350/- which was enhanced by the High Court to Rs.2,65,000/-. The evidence of the doctor tendered in the Tribunal on 3.12.2008 stated that the future treatment would cost more than Rs.90,000/-. This corroborating evidence has not been contravented. The High Court however awarded only an amount of Rs.15,000/- towards future medical expenses. In view of the dicta in Raj Kumar Vs. Ajay Kumar (supra) we accept the corroborative evidence given by the doctor, and add the amount as reflected in the doctor’s evidence. A similar view has been taken by a Bench of this Court recently in Civil Appeal No. 5945 of 2012 Kavita Vs. Deepak, decided on 22.8.2012 to which one of us (G.S. Singhvi J) was party. This would add the remaining amount of Rs.75,000/- to the compensation awarded by the High Court which takes it to a figure of Rs.3,40,000/. Since, the doctor has said that the expenses could be more than Rs.90,000/- but has not specified how much would be that amount, we add the remaining amount of Rs.10,000/- to make it Rs.3,50,000/- and thus fully allow the claim of the appellant. The amount of Rs.85,000/- thus added, with interest at 8% from the date of the petition (as originally awarded) will give her an added amount in the range of Rs. 1,25,000/. That will meet her requirement as placed before the MACT in her claim petition in its entirety. . The appeal is accordingly allowed. The claim petition filed by the appellant will stand decreed at Rs.3,50,000/- with interest @ 8% per annum from the date of the petition as awarded by the MACT. The respondent No.2 insurance company is directed to pay the amount as now added with interest at 8% as above within 8 weeks from today.
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Service matter = Government Order (for short “G.O.”) dated 10.1.1977 governed the method of promotions to the post of Section Officer in the Administrative Secretariat and also laid down the essential qualifications of the incumbents in the feeder category to be eligible for consideration for such promotion. The aforesaid G.O. dated 10.1.1977 was superseded by another order dated 5.6.1989 under which G.O. three categories of incumbents in the ratio of 15:1:1 (in a cluster of 17 posts) were made eligible for promotion to the post of Section Officer. - Clause (d) being the relevant clause may be usefully noticed at this stage. “The graduate typists/confidential assistants will not be appointed as Section Officer in preference to the typists/confidential assistants who have already passed the suitability test and who are awaiting appointment as Section Officer. However, qualified and eligible graduate typists/confidential assistants will be appointed as Section Officers if eligible suitability test passed trained typists/confidential assistants are not available in their turn for appointment as Section Officer.” 3. Clause (d) contained in the G.O. dated 17.6.1988 came to be subjected to different interpretations and understandings unravelling several ambiguities.- whether it gave a preferential right to Graduate Typists/Confidential Assistants for consideration for promotion and, if so, was the said right available in perpetuity after the date of coming into force of the G.O. w.e.f. 17.6.1988. The aforesaid controversy between the Graduate and Non-graduate aspirants for the promotional post was attempted to be resolved by several court orders until the Government thought it appropriate to clarify the matter by issuing a subsequent G.O. almost a decade later, i.e., on 19.3.1998. The aforesaid G.O. dated 19.3.1998 which is on record goes on to recite that, “The Typists/Confidential Assistants who had passed the Suitability Test and completed the training for one year as Assistant and became qualified for appointment as Section Officer in the Administrative Secretariat as on 17.06.1988 alone would be eligible for preference over the Graduate Typists/Confidential Assistants”.= The clarificatory G.O. dated 19.3.1998, though seeking to clarify and throw light on the confusion caused by reading the date of the G.O. i.e. 17.6.1988 as a cut off date for working out a preference in favour of the Graduates, had gone beyond the terms of the main G.O. dated 17.6.1988 by stating that it is only those Typists and Confidential Assistants who had passed the qualifying examination before 17.6.1988 who will be entitled to have priority over Graduate Typists/Confidential Assistants. How the clarification sought to be made by the G.O. dated 19.3.1998 could have the effect of giving priority to either of the 2 groups of incumbents when no such priority or preference was contemplated by the initial G.O. dated 17.6.1988 defies logic. The above stated effect of the clarification, if accepted, would occasion a corollary that after 17.6.1988, Graduate Typists/Confidential Assistants will always have priority over Non-graduates though such Non-graduates may have passed the qualifying examination and are otherwise eligible for promotion. If the above meaning is to be attributed to the clarificatory G.O. the same would surpass the main G.O. dated 17.6.1988. effect of the clarificatory G.O. cannot, by any means, supersede or override the terms of the main order. This is an elementary principle of interpretation. This is precisely how the High Court has understood the issue before it and has held that the original G.O. dated 17.6.1988 merely exempts Graduate Typists/ Confidential Assistants from passing the suitability test and no further. If that is the true purport and effect of the G.O. dated 17.6.1988, on which we have no doubt, naturally, the clarificatory G.O. has to be restricted in its meaning as has been done by the High Court and cannot be allowed to work to the undue advantage of the Graduates and to the detriment of the non-Graduates. For the aforesaid reasons, we do not find any merit in this appeal. We accordingly dismiss the same and affirm the judgment and order dated 01.02.2006 of the Division Bench of the High Court.
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