31 May 2020

Objection to admissibility of electronic evidence without compliance of sec.65B can be raised in appeal even if not raised in the trial

Whats is the difference between objection to admissibility of document and objection to mode of proof?

What are its consequences?

If electronic evidence is admitted and exhibited in evidence then its admissibility can be raised in appeal even if it is not objected in the trial.

30 May 2020

Agreement by wife for relinquishment of her right to claim maintenance is not enforceable even if voluntarily entered by her

Divorce by mutual consent - Wife agreed not to claim any maintenance including Streedhan, husband assured to continued marrital relationship and maintain her- Husband and wife continued their marrital relationship inspite of paper decree of divorce - After some years husband discontinued this relationship and not made any arrangement for maintenance of wife who has been divorced by him - Wife claimed maintenance u/s.125 of CrPC - Husband's defence that she had given up her claim for maintenance, when the decree for divorce by mutual consent was passed; and she has income source as she is running a beauty parlour.

Held:

   A woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.[Para No.20]

29 May 2020

Discharge of accussed: if no grave suspicion exist

  • When discharge of accused can be granted ?
  • What has to be considered while deciding framing of charge against accessed?

   It is a settled principle of law that at the stage of framing of charge, Magistrate can sift the evidence for limited purpose. Detailed scrutiny is not to be done. Prosecution story need not be accepted as gospel truth. If the charge is found to be groundless, then the Magistrate on consideration of the police report and the documents and making such examination as deemed appropriate, may discharge the accused, but if there is ground to presume that accused has committed an offence, the charge can be framed. The basic concept is that the Court has to see the prima facie nature of the case at the time of framing of charge. Broad probability of the case can be considered. Following principles are to be kept in mind at the time of framing of charge:-

27 May 2020

Retirement of one partner amounts to dissolution of partnership if there are only two partners

  • Is retirement of partner and dissolution of partnership firm is the same thing?
  • What the difference between retirement and dissolution?
  • When retirement of partner amounts to dissolution of partnership firm?

 Sec.37 and 48 of The Partnership Act

Retirement of one partner amounts to dissolution of partnership if there are only two partners
   There is a clear distinction between ‘retirement of a partner’ and ‘dissolution of a partnership firm’. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724]. [Para No.12]

23 May 2020

Examination of investigating officer; before injured or eye witness is examined, does not cause prejudice to accused in his defence

Fair trial - order of examination of witnesses by prosecution - Sec.135 of Evidence Act - Sec.230, 231, 311 of CrPC

   Does examination of investigating officer before injured or eye witness is examined, cause prejudice to accused in his defence?

Held: No

22 May 2020

Order of process issue is not interlocutory order still can not be challenge u/s.482 of CrPC

So far as the order dated 04.02.2016 is concerned, cognizance of the offence was taken and the accused were directed to face trial by way of issuing summons. 

   It is settled law that such orders are revisable orders as they adversely affect the right of the accused. Revision would lie against such order.[Para No.5 and 6]


Defence story has to be suggested in cross examination

Importance of putting defence story in cross examination of witness - No suggestion is given to witness in the cross examination about the story put forwarded by accused  in his statement u/s.313 of Cr.P.C.


Defence story has to be suggested in cross examination
Held:
   
   When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point. When it is intended to suggest that a witness is not speaking the truth on a point, it is absolutely essential to direct his attention to the disputed facts and grant him opportunity to offer his explanation on that point. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. [Para No.19]

20 May 2020

F.I.R. can not be doubted if name of accused is not mentioned in F.I.R

It is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear.[Para No.15]

Transfers during pendency of suit by a party to the suit is not void, such transfer is subservient to the decision in the suit.

What is the status of transaction and purchaser of property during the pendency of suit?

   It is settled legal position that the effect of Section 52 is not to render transfers effected during to pendency of a suit by a party to the suit void, but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to, or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. The mere pendency of the suit does not prevent one of the parties to the suit from dealing with the subject matter of the suit. The Section only postulates a condition that the lis pendens alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit unless the property alienated with the permission of the Court.

19 May 2020

In order to punish a contemnor, it has to be established that disobedience of the order is wilful

The contours for initiating civil contempt action:
   The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to them majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. Ther proceedings are quasi ­criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities.
(Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697, Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530, Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC 705 and National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600.)

What factor's has to be considered while awarding sentence for an offense?

A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, prospect for rehabilitation of the offender, the possibility of return of the offender to normal life and the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect of the particular type of the offence

factors-to-be-considered-while-awarding-sentence
These factors have to be taken into account by the Court in deciding upon the appropriate sentence.



{Relied on Mohd. Giasuddin v. State of A.P.: (1977) 3 SCC 387}

18 May 2020

Qualification of wife and capacity to earn cannot be a ground to deny maintenance to wife who is dependent and does not have any source of income

Factors be considered in fixing the quantum of maintainable.

   It is also well settled principal of law that while granting the maintenance, following factors should be taken into consideration :
  • (I) Income, property and capability of earning of both the parties.
  • (ii) Living standard and need of the parties keeping in mind the principle that wife is entitled to get an amount of maintenance which will enable her to maintain almost the same standard of living to which she was entitled if she would have lived in the house of her husband. 
Qualification-and-capacity-to-earn-not-ground-to-deny-maintenance-to-defendant-wife
  • (iii) Qualification of the wife and capacity to earn cannot be a ground to deny maintenance to a wife who is dependent and does not have any source of income. Whether Appellant is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant is capable of earning is not sufficient reason to reduce the maintenance awarded by the Family Court.[Para No.12] 

17 May 2020

When sanction u/s.197 of Cr.P.C. is not needed to prosecute a public servant?

If the act or omission for which the accused is charged, had prima-facie reasonable connection with discharge of his duty, then it must be held to be official attracting applicability of Section 197 of Cr.P.C.


No-sanction-under-section-197-of-Cr.P.C.-is-needed-to-prosecute-public-servant- if-offence-has-no-nexus-with -his-official-duties
In the case of Baijnath vs. State of M.P., reported in AIR 1966 S.C. 220, it was held that it is the quality of the act that is important, and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. In the case at hand, the alleged act of the accused-public servant of forging and fabricating documents, creating fake notifications to defraud the State Government and different public authorities for wrongful gain of his official duties cannot be said to have any nexus with discharge of his official duties. Hence, sanction under Section 197 of Cr.P.C. for launching the prosecution against him is held to be immaterial.

16 May 2020

Only allegations disclosing ingredients of offence and not the correctness of allegations is to be considered while issuing process u/s.204 of Cr.P.C.


What has to be considered at the time of issuing process u/s.204 of Cr.P.C.


  • Allegations disclosing ingredients of offence? or
  • the correctness of allegations? or
  • sufficiency of material for conviction?

Submission of the charge-sheet is not a lock gate to seek anticipatory bail

F.I.R. alleging non bailable offence registere - During the course of investigation notices under Section 41(A) of Cr.P.C. have been served upon the accused upon which he has given reply through Email - After completion of the investigation, a charge-sheet against the accused filed in the Court - Court took cognizance and issued summons to accused.

Is application seeking anticipatory bail after filling of chargesheet tenable?

   Submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail.

14 May 2020

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”


The burden of proof; of non compliance of order of consumer forum, is not on the accused.

Sec.27 of The Consumer Protection Act - Non compliance of judgment of forum - execution petition - only one respondent/accused appeared - No steps taken against other accused - Forum recorded plea without separating trial - Adjournment sought by accused is rejected - No evidence of either applicant or accused is recorded, Still forum ordered the accused to comply with the judgment on the same day till 4 pm only - Accused failed to comply with - Forum cancelled his bail and taken in custody.

Held:
   The burden of proof; of non compliance of order of consumer forum, can not be on the accused. [Para No.9]

13 May 2020

Denial of default bail u/s.167(2) of Cr.P.C. amounts to violation of his fundamental right under Article 21 of the Constitution of India

Does denial of default bail available u/s.167(2) of Cr.P.C. amounts violation of fundamental rights if accused?
Denial-of-default-bail-is-violation-of-fundamental-rights

Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Cr.Pc remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India.[Para No.14]

12 May 2020

How to prove plea of Private Defence in criminal trial?

Two young men quarrelled suddenly and threw stones at each other. The stone pelted by the deceased missed; while the stone pelted by the appellant accidentally hit the head of the deceased. The deceased being the aggressor, the accused unintentionally assaulted him to defend himself. He threw a single stone. Weight, shape or size of which is not clear from the record. Neither the appellant acted in cruel manner nor had he taken any undue advantage of the situation. He simply ran away from the scene. It does not appear that the appellant had exceeded his Right of private defence. Therefore, he is entitled to acquittal as no action can be considered as offence, if it is done in exercise of right of private defence.[Para.25]

How-to-prove-Private -Defence
   At the time of the incident, the deceased was 18 year old and the appellant was 22 year old. There is no evidence of any previous enmity between both of them. There is also no evidence of "motive", "preparation", "premeditation" or "intention" of causing death or more harm than necessary for the purpose of defending himself. It was a sudden fight in the heat of passion upon a sudden quarrel and without taking any undue advantage or acting in any cruel or unusual manner, as a natural reflex, the appellant also picked a stone lying there and threw it towards the deceased. His action was a reflex action to save himself from the attack by the deceased. It was not the case of the prosecution itself that the accused targeted any particular body part or more precisely the head of the deceased and evidence also does not show any such intention of the appellant. There is no evidence to show the weight, size or shape of the stone used by the appellant to assess the intention or impact of blow to arrive at a conclusion favourable to the prosecution. There is also no evidence to show that the stone was unusual in size or shape or whether it was sufficient to cause death in the normal course. The injury found on the head of the deceased cannot be said that it was of an unusually severe nature or that it was intended to be so.[Para No.20]

Directions u/s.156 of Cr.P.C. to investigate not to be issued if allegations do not prima facie make out offence

Application filed by the petitioner under Section 156 (3) of the Code has been rejected and the petitioner has been directed to examine his witnesses as per the provision of Section 200 and 202 of the Code.

Directions-u-s-156-of-Cr.P.C.    It is settled legal position that once the Magistrate has come to the conclusion that allegations made in the complaint do not prima facie make out offence then the Magistrate was right in rejecting the application under Section 156 (3) of the Code and he is also right in fixing the case for recording the statement of the complainant and his witnesses under Sections 200 and 202 of the Code. It is also well established principle of law that order under Section 156 (3) of the Code could not be passed in a mechanical manner. There has to be due application of mind. Once the Magistrate has applied his mind and if he comes to the conclusion that prima facie the applicant has failed to make out a case for cognizable offence warranting issuance of an order under Section 156 (3) of the Code then the Magistrate is right in rejecting the application, if otherwise does not obligatory on the Magistrate to issue an order under Section 156 (3) of the Code only on the basis of averments made in the complaint.

10 May 2020

Offence of atrocity can not be registered against a member of SC & ST

Can an offence of atrocity under SC ST (Prevention of atrocity) Act be registered against another person belonging to SC ST ? 
  
No-atrocity-offence
  The person which is making such allegations or utterances should not be a member of either Scheduled Caste or a Scheduled Tribe, as per T. Toranath & Anr. v. State of A.P. & Ors., reported in 1999 (1) Crimes 188 That means, the offence under these can be lodged against those persons only who are not being a member of a Scheduled Caste or a Scheduled Tribes.[Para No.12]

Proper procedure to exercise revisional powers

What is the proper procedure to exercise Revisional powers u/s. 397 & 399 of Cr.P.C.? 

revisional-powers
    Revisional Court even after having knowledge that the scope of the revision is limited to see either the correctness, legality or propriety of any finding, sentence or order exceeded in his jurisdiction in issuing process against the accused, has unnecessarily over-reached itself. The proper course could have been after passing a detailed order, to remit the case back to the Magistrate to pass an appropriate order, in pursuant to the observations in the revision.[Para No.12] 

09 May 2020

Disability Certificate is a public document which can not be doubted

 Motor Vehicle Accident Claim - how to appreciate Disability Certificate and how to fix quantum of compensation?

    Disability certificate issued by the Medical Board of Government Medical College is a public document, it cannot be doubted.

Disability-certificate   The disablement certificate issued by the Medical Board of a Government Medical College is a public document. The disablement of 50% as in the certificate is to be supported by other evidence either documentary or oral for the purpose of strengthening the cause before an appropriate court of law.[Para No.24 & 25] 

    The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc.[Para No.9]

08 May 2020

Instigation to commit suicide must be intended to push the deceased into such a position that he commit suicide

Dispute regarding land - Quarrel took place between accused and deceased - Deceased had been beaten by the accused - Deceased committed suicide - offence u/s. 306 of IPC registered - During investigation, no intention of the accused is found which intended to push the deceased into such a position that he committed suicide specially when the deceased was well aware with the legal remedy and he called the police by dialing 100 prior to the incident.

instigation-to-commit-suicideHeld:
   A person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigation requires an active act or direct act which led the deceased to commit suicide seeing no other option and that act must be done with an intention to push the deceased into such a position that he commit suicide. The offence of abetment by instigation depends upon the intention of the person who abets the deceased. Instigation has to be gathered from the circumstances of a particular case and it is to be determined whether circumstances had been such, which in fact, had created the situation that a person felt totally frustrated and committed suicide.Para No.18]

07 May 2020

Weakness in the defense cannot be the basis to grant relief to the plaintiffs

Can weakness of defense be a ground to decree a suit?
weakness-of-defense

   The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden can not be shifted on the defendants. [Para No.16]




Accused can challenge the sentence in an appeal filed by State for inadequacy of sentence

Can a convicted person; without filing an appeal, challenge his conviction, in an appeal filed by the State on the ground of inadequacy of sentence?

 Held: Yes

accused-and-appeal
It is open to accused to challenge the finding and order of conviction recorded against him in the appeal filed by the State?

    In an appeal filed by the State; against the sentence, on the ground of its inadequacy, the accused can plead for his acquittal or for reduction of the sentence. [Para No.6]


06 May 2020

Civil suit for declaration of nullity of Revenue Officers' order is maintainable

The land was recorded in the name of Government - Plaintiff is in possession and paying taxes - Defendant obtained order from revenue officer to the effect that defendant is the owner of that land - order is passed without issuing notice to plaintiff and without following due procedure and without following principals of natural justice - Defendant is taking advantage of the said order and trying to remove the plaintiff from the land - suit for declaration - bar to jurisdiction - Sec. 36, 36(A) and 36(B) of The Maharashtra Land Revenue Code.

declaration-suit-for-nullity   If the order is ultra virus the parties entitled to ignore it and to go to the Civil Court for declaration that the order is a nullity and no action should be taken against under that order, which would prejudice his right.[Para No.22]

  In view of the specific allegation that without following due procedure and without following principals of natural justice, the revenue authorities have passed the orders in favour of the defendant No.6/petitioner and further in view of the other reliefs prayed in the plaint, other than declaring the orders of the Revenue Officers as ultra virus, which are very well permissible in a civil suit, I do not find any merit in the present petition. Further I have no hesitation to hold that no infirmity of law or error has been committed by the learned trial Court while holding that the suit is maintainable. [Para No.23]

05 May 2020

Mere service of notice would not give rise to a cause of action

Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. [Para No.20]

mere-notice-is-not-cause-of-action

   As cause of action is the bundle of facts to examine the issue of jurisdiction it is necessary that one of the interlinked fact must have occurred in a place where the case has been instituted. All necessary facts must form an integral part of the cause of action. The fact must have direct relevance in the lis involved. It is not that every fact pleaded can give rise to a cause of action so as to confer jurisdiction on the Court in whose territorial jurisdiction it has occurred.[Para No.21]

04 May 2020

Plaintiff must plead and prove specific instances of cruelty or intention of desertion for obtaining divorce

Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental.
Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible.Section 13 (i) (i-b) of Hindu Marriage Act 1955, on the other hand provides for grant of decree of divorce on the ground of 'desertion'. However, in order to seek decree of divorce on the ground of 'desertion', plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.[Para. No.31]
cruelty-to--be-specifically-pleaded-and-proved
Allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible.
No infirmity in the dismissal of suit for divorce.

03 May 2020

Family Court has jurisdiction to award permanent alimony to Muslim wife while granting the decree of divorce in her favor

The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having the jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father.
The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.[Para No.56]
   
The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.[Para No.79]

permanent-alimony-to-Muslim-wife
   The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
   The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
   When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.[Para No.80]

Gujarat High Court

Tarif Rashidbhai Qureshi
Vs.
Asmabanu Alimohmmad Idarbhai Qureshi

Decides on 19/03/2020



02 May 2020

Tenant is not protected if he fails to pay rent after receipt of notice and during the trial as well as appeal proceeding

Maharashtra Rent Control Act - Eviction of tenant on the ground of default in payment of regular rent and illegal subletting - No rent is paid even after receipt of notice for eviction - Tenant disputed the standard rent but has not filed application for fixation of standard rent - Tenant made default in payment of regular rent in trial court and appellate court - Court commissioner report in respect of subletting filed but tenant has not filed his say thereon.

   The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in Clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterized by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause (b), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently default during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months as is the case before us the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this Clause irrespective of the fact that by the time the Judgment was pronounced all the arrears had been cleared by the tenant.
{Mranalini B. Shaha and another Vs. Baplal Mohanlal Shaha (1980) 4 SCC 251} [Para No.16]

What has to be considered while deciding an application seeking action for perjury?

All that is required to be assessed is whether a prima facie case is made out that there is a reasonable likelihood that the offence specified in Section 340 read with Section 195(1)(b) of the CrPC has been committed, and it is expedient in the interest of justice to take action. [Para No.5]


perjury

01 May 2020

Insurance company not liable when vehicle is driven by unauthorized driver

Motor Vehicle Accident  Petition - Sec. 165, 168, 174, 149(2) of The Motor Vehicle Act - Accident by unauthorized driver - breach of policy - liability of Insurance Company


insurance-company-not-liable   Mere producing of valid insurance certificate, in respect of offending truck is not enough for the owner to make insurance company liable to discharge liability arising from rash and negligent driving by the driver of the vehicle. The insurance company can be fastened with the liability on the basis of the valid insurance policy only after basic facts are pleaded and established that the vehicle was not only duly insured but also that it was driven by anauthorized person having a valid driving license. The insurance company would become liable only after such foundational facts are pleaded and proved by the other side.

Subsequent complaint can be clubbed with existing F.I.R.

F.I.R. made by the father of victim girl that she might have been kidnapped/abducted. After registration of FIR, complaint made by the victim girl about her sexual exploitation with detail incident.

   Can such complaint be clubbed with existing FIR?


   If the FIR lodged by her father is the skeleton, victim's complaint is the flesh and blood to it.

   If the investigating agency had taken a decision to club the subsequent complaint with earlier FIR it cannot be said that the investigating agency violated any provision of law. In fact, such clubbing was legally justified. 

Subsequent-complaint
 It is well settled that a first information report need not necessarily be lodged by the victim of a sexual offence. Any person having information of the offence can report. It is equally well settled that an FIR need not be an encyclopedia of all the facts and allegations describing an offence. The object of lodging a first information report is to report an offence, cognizable in nature, so that the matter is investigated and a police report is submitted in court to enable it to take cognizance and proceed against the accused.

Photocopy of documents can not be impounded by civil court

Suit for eviction of tenant - tenant in his evidence produced photocopy of rent agreement - Landlord denied the same and objected - notice to produce the document was issued, but, landlord denied the very existence of rent agreement - document is not exhibited - Appellate court  impounded the photocopy of agreement to the payment of requisite stamp duty and penalty thereon and further ordered that after payment of the requisite stamp duty and penalty on the said document it be exhibited for the collateral purpose.

   Section 2(l) of the said Act, defines "instrument" and it reads as follows :
"instrument" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;"

Photocopy-not-be-impounded   A perusal of the said definition makes it clear that an "instrument" under the said Act is a document by which any right or liability is created or extinguished. Such a document would necessarily be the original of the said document and in this context, when Section 32(A) of the said Act is perused, it refers to "instrument" of conveyance, exchange, gift, etc. In a situation, where there is a short fall in payment of stamp duty, the Collector of the District has to give the parties concerned a reasonable opportunity of being heard and then determine the difference of amount of duty payable along with penalty and on payment of such amounts, "instrument" received shall be returned to the officer or the person concerned.
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