Abatement of suit _ Suit for partition _ Defendant Nos.3 and 5 died during the pendency of suit _ Legal heirs not brought on record by Plaintiff _ Courts below could not have proceeded to decide the matter on its own merits _ Decree passed by the courts below being against the dead persons to some extent cannot be sustained. (See 2015 (11) LJSOFT 103)
Acquisition of land under MID Act _ Applications filed u/s 28-A of L.A. Act seeking re-determination of compensation on the basis of the award of the Court _ Provisions of Section 28-A of L.A. Act would apply to the acquisitions under the MID Act. (See 2015 (11) LJSOFT (NAG) 49)
Appeal against acquittal by victim _ Requirement of obtaining leave is deleted in the wake of right given to the complainant under Section 372 of Cr.P.C. _ However it does not mean that such appeal is automatically admitted for final hearing _ Appeal preferred by the accused against his conviction u/s 374 can also be dismissed summarily after following procedure prescribed u/s 384 of Cr.P.C. (See 2015 (11) LJSOFT (NAG) 80)
Arbitration proceedings _ Interim reliefs _ Facility agreement _ Default in repayment of loan amount _ Petitioner has simplicitor applied for recovery of the money lent and advanced in the claim filed before the arbitrator _ Interim reliefs claimed u/s 9(ii)(d) in respect of the mortgaged property to secure the amount in dispute in the arbitration _ Court can grant interim measures u/s 9(ii)(b), 9(d) and 9(e) even if the property or things are not subject matter of the dispute in arbitration. (See 2015 (11) LJSOFT 28)
Arbitration proceedings _ Reliefs sought by the Multi-state Cooperative Bank for enforcement of the securities for the purpose of recovering the debts would exclusively fall within the jurisdiction of the arbitrator u/s 84 and thus expressly or impliedly barred from the purview of the jurisdiction of the civil court. (See 2015 (11) LJSOFT 136)
Arbitration proceedings _ Service of notice _ Notices sent by the Registered Post A.D. at the last known addresses of the petitioners _ Same have not been returned by the postal authority _ Would amount to a deemed service of such notices and proceedings. (See 2015 (11) LJSOFT 145)
Auction sale of property _ Auction sale of property _ Petitioner claim to be the joint owner of the property mortgaged towards security _ Petitioner not served with a notice before conducting the public auction _ Prima facie there is a clear violation of the provisions of Rules 8 and 9 of the Rules of 2002. (See 2015 (11) LJSOFT (NAG) 104)
Bail _ Grant of _ Robbery _ Only material against the applicant is in the form of statement of co-accused _ Material against the applicant insufficient to establish any role of the applicant in connection with the crime _ Bail granted. (See 2015 (11) LJSOFT (NAG) 173)
Bail _ Grant of _ Two previous applications were rejected by High Court _ Out of 23 persons except the applicant and one other person all others have been released on bail _ Case of applicant is not very different from some of them who have been released on bail _ Though there exists a prima facie case against the applicant but there are no chances of the trial commencing immediately _ Co-accused similarly placed have already been released on bail _ Court is required to maintain uniformity, as far as possible in its approach in such matters _ Bail granted. (See 2015 (11) LJSOFT 172)
Consent decree passed in year 2000 _ Amount determined by the Executing Court was paid by respondent in October, 2012 _ Appellants filed suit in 2014 for recovery of interest for the delay in paying the amounts _ There is a specific averment that the appellants have been deprived of such amount since the year 2003 _ Any cause of action after the consent decree was passed cannot be treated to be a claim which could be raised in the earlier suit _ Averments do not disclose that the suit is barred by the principles of res judicata. (See 2015 (11) LJSOFT (GOA) 34)
Default bail _ Application filed u/s 439(1) of Cr.P.C. _ No prohibition that the accused cannot raise the ground of default bail u/s 167(2) of Cr.P.C. _ Ground of default of the investigating agency to file charge-sheet within the prescribed period can be resorted to in an application filed u/s 439(1) of Cr.P.C. (See 2015 (11) LJSOFT 27)
Dishonour of cheque _ Complaint not signed by the complainant at the time of its presentation _ Unsigned complaint u/s 138 is maintainable and the signature of the complainant is necessary at the time of its verification and statement u/s 20 of Cr.P.C. _ Impugned order setting aside the order issuing process quashed and set aside. (See 2015 (11) LJSOFT (GOA) 12)
Dishonour of cheque _ Offences by companies _ Partnership firm _ No basic averments in the complaint to indicate that on the date of offence the respondent-accused were the partners of the partnership firm and that they were incharge of and responsible for the conduct of the business of the company _ Partnership firm not arrayed as accused and the statutory notice required u/s 138(b) was not served on the partnership firm _ Order of acquittal proper. (See 2015 (11) LJSOFT 4)
Dishonour of cheque _ Typographical error regarding date of intimation _ Order allowing the typographical mistake is in the nature of interlocutory order _ Revision Application against the said order is not maintainable. (See 2015 (11) LJSOFT (GOA) 11)
Dying declaration _ Endorsement of Doctor is not sine- qua non or a must _ What is essential is the satisfaction of the person who records dying declaration, that the declared was in a fit condition to give statement. (See 2015 (11) LJSOFT 89)
Evasion of stamp duty _ Allegation of not showing the market value of the subject property _ Necessary provisions exist u/s 32(A)(5) in the Stamp Act itself to take care of such situation / contingency _ Notice u/s 32(A)(2) of Stamp Act has already been issued to the applicants on 16.6.2010 _ No propriety in initiating the criminal proceeding against the applicants under the provisions of IPC and more so when there does not seem any cogent, concrete and sufficient material available against the applicants in that regard. (See 2015 (11) LJSOFT (AUR) 10)
Eviction proceedings _ Legal heirs _ Upon death of tenant all his legal representatives would be the joint tenants and not tenants in common _ Whether the suit would be hit for non-joining the daughters of deceased would not be the issue in the present lis in view of the Explanation-VI to Section 11 of CPC _ Suit not hit by non-joinder of necessary parties. (See 2015 (11) LJSOFT (AUR) 68)
Eviction proceedings _ Will _ Tenancy can be transferred only to family members of deceased tenant _ Right of tenancy cannot be bequeathed by the tenant by Will in favour of a stranger. (See 2015 (11) LJSOFT 41)
House trespass _ Assault or causing of hurt which is essential ingredient of Section 452 of IPC neither alleged nor proved _ It would be a case of ‘civil trespass’ as distinguished from ‘criminal trespass’ _ Unlawfully taking possession of the property in somebody else’s possession, simplicitor, has not been made an offence punishable under the IPC or any other law. (See 2015 (11) LJSOFT 125)
Illegal gratification _ Laying trap in Court Premises _ Absolutely improper on the part of the Investigating Agency to have laid a trap without seeking a previous permission of the Hon’ble The Chief Justice. (See 2015 (11) LJSOFT 2)
Illegal gratification _ Sanction for prosecution _ No prohibition in law in seeking assistance from office staff or subordinates as long as the responsibility for reading the relevant facts and reaching satisfaction based on such reading is not shifted or transferred to the subordinate staff _ Prosecution ought to have explained that the sanctioning authority either ignored or considered the direction was submitted by the subordinate together with all relevant material for applying his own mind and accordingly reached his satisfaction in the matter _ As no satisfactory explanation has been offered the adverse inference would have be drawn that the sanctioning authority did not apply his mind and that the sanction order was issued mechanically. (See 2015 (11) LJSOFT 100)
Illegal gratification _ Witnesses in trap cases are specifically expected to, and are told to watch the happening of the events including the sequence thereof carefully _ Variations which might be justifiably ignored as not very material or significant in other cases, may not so easily be ignored in trap cases. (See 2015 (11) LJSOFT 2)
Interpretation of statutes _ Proviso is merely an exception to the main provision _ It cannot be read in a manner that would take away the effect of the main provision as the stream cannot rise higher than its source. (See 2015 (11) LJSOFT (NAG) 106)
Matrimonial disputes _ Wife could not have sent the SMSs to the husband during the pendency of the proceedings specially after the parties had tendered the evidence, oral and documentary _ Wife had admitted that she had sent the SMSs to the husband _ Family Court rightly accepted the said SMSs tendered by the husband on record by taking recourse to the provisions of Section 14 of Family Courts Act. (See 2015 (11) LJSOFT (NAG) 51)
Motor accident _ Compensation _ Income tax returns for the year 1996-97 was filed 6 months after the demise of deceased _ No suggestion whatsoever, was put to the witness that the income mentioned in the said ITR had been inflated after the demise of the deceased _ Respondents - claimants were not put to notice of the said ground which is now sought to be raised _ Income mentioned in the said ITR has virtually gone unchallenged _ Said income of the year 1996-97 can be considered. (See 2015 (11) LJSOFT 24)
Opportunity of hearing _ Laying of electricity transmission line _ Section 164 of Electricity Act does not contemplate any hearing and it need not as it is only an enabling section _ No question of any person being affected by authorisation u/s 164 _ Section 164 cannot be said to be bad in law or violative of principle of fairness or even any fundamental freedom to carry on any occupation, business etc. under Articles 14, 21 and 19(1)(g) of the Constitution of India. (See 2015 (11) LJSOFT (NAG) 63)
Order of investigation _ Nothing remains pending before the Magistrate after such order is made _ Magistrate has further nothing to do and the proceeding u/s 156(3) of Cr.P.C. gets terminated _ Order u/s 156(3) is not an interlocutory order but is a final order terminating the proceeding u/s 156(3) and the revision would lie u/s 397 or Section 401 of Cr.P.C. (See 2015 (11) LJSOFT (AUR) 1)
Production of additional document _ Silence of accused _ Accused may simply keep silence in respect of the document which may as well be an expression of his fundamental right under Article 20(3) of the Constitution of India which says that no person accused of any offence shall be compelled to be a witness against himself _ If accused chooses to deny the document or just remains silent in that regard, the document cannot be admitted in evidence and it would be required to be proved in accordance with law, having regard to the right of the accused under Article 20(3) of the Constitution of India (See 2015 (11) LJSOFT 70)
Quashing of criminal proceedings _ Alleged that forged documents of partition has been filed in pending civil proceedings _ Civil Court is yet to adjudicate the same issue about the documents of partition whether they are true or forged _ Allowing the parallel criminal proceedings to continue on the same issue would tantamount to abuse of process of criminal Court as there is likelihood of conflicting and contradictory findings. (See 2015 (11) LJSOFT (AUR) 9)
Quashing of F.I.R. _ Felling of trees _ Offence u/s 8(1) of the 1975 Act is non cognizable _ FIR could not have been registered. (See 2015 (11) LJSOFT 186)
Rape case _ Appreciation of evidence _ Unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration _ Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn _ Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason _ She has a right to refuse to submit herself to sexual intercourse to anyone and everyone. (See 2015 (11) LJSOFT 65)
Recording of common evidence _ Matter u/s 125 of Cr.P.C. and any other Civil Petition filed under the Family Court Act can be tried together _ Common evidence can be recorded in the maintenance matter u/s 125 of Cr. P.C. and any other petition that may be divorce or custody or under maintenance and Guardian Wards Act. (See 2015 (11) LJSOFT 33)
Revisional jurisdiction _ Complaint for the offences u/s 403, 406 and 409 of IPC dismissed u/s 203 of Cr.P.C. _ Revisional Court could have remanded the matter for reappreciation of facts and do the needful but no such direction can be given to the Trial Court to issue process u/s 406, 409 r/w 34 of IPC. (See 2015 (11) LJSOFT 16)
Secondary evidence _ Two things are required to be proved; (i) there must be evidence of the existence of the original documents and (ii) there must be evidence of their loss _ Same cannot be proved unless party concerned is permitted to enter the witness box and/or examine the witnesses who are also subjected to cross-examination by adversarials _ Trial court erred in refusing to grant permission to the party to enter the witness box and/or examine the witnesses. (See 2015 (11) LJSOFT (NAG) 21)
Specific performance of contract _ Limitation _ Computation of _ Time taken to pursue a complaint under the Consumer Protection Act can be excluded in terms of Section 14 of the Limitation Act. (See 2015 (11) LJSOFT (GOA) 81)
Specific performance of oral agreement _ Advance rent _ Prohibition in Section 18(3) of Rent Act applies only to amount taken by way of loan for the purpose of financing residential building and not commercial building. (See 2015 (11) LJSOFT 17)
Suit for permanent injunction _ Plaintiff does not claim to be in possession of the suit property _ Serious disputes raised not only regarding description of property but also in respect of identification of properties and Gat Numbers in consolidation proceedings _ Suit simpliciter for grant of prohibitory injunction against the defendant not maintainable. (See 2015 (11) LJSOFT 97)
Suit for specific performance of agreement of flat purchase _ Defendants unilaterally increased the flat price from 70.83 lakhs to 98.28 lakhs showing it as “Agreement Value” _ No oral terms can be admissible in a written contract u/s 91 of Evidence Act _ Plaintiff is not bound by the unilateral modification of contract by defendants. (See 2015 (11) LJSOFT 50)
Tenancy proceedings _ Death of tenant during pendency of proceedings _ Application for bringing his LRs on record was filed within 90 days period of limitation as prescribed by Article 120 of Limitation Act but no order was passed on that application _ Suit does not abate automatically against the deceased defendant unless there is specific order passed by the Court rejecting such application. (See 2015 (11) LJSOFT 43)
Verification fees _ No prohibition under Rule 16 also for deposit of fees by the licensed repairer _ Impugned letters/circulars dated 22.10.2014 and 27.10.2014 quashed and set aside _ Would be open for the Legal Metrology Officer or the officer authorised to accept the fees deposited by the licensed repairer. (See 2015 (11) LJSOFT (AUR) 132)
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