22 April 2021

Non-production/withholding a vital document in order to gain an advantage on the other side tantamounts to playing fraud on the Court

No litigant is entitled to obtain the aid of the law to protect him in carrying out a fraudulent act



    The most sagacious judgments of our Courts define "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a sort of cheating intended to gain an advantage. Any litigant who approaches Court is bound to produce all the documents relevant, material and germane to the litigation. Non-production or non-mentioning or withholding a vital document in order to gain an advantage on the other side
Non-production or withholding a vital document in order to gain an advantage on the other side tantamounts to playing fraud on the Court
tantamounts to playing fraud on the Court as well as the opposite party
[S.P. Chengalvaraya Naidu vs. Jagannath & Ors (1994) 1 SCC 1 (paras-1,5 & 6), A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. (2007) 4 SCC 221 (paras 21-33), K.D. Sharma vs. Steel Authority of India & Ors. (2008) 12 SCC 481 (paras-26-28 & 34-52) and Dalip Singh vs. State of Uttar Pradesh & Ors. (2010) 2 SCC 114 (paras 1- 9)].[Para No.12]

    This fact of suppression assumes more significance in a writ proceeding which has been instituted under Article 226 of the Constitution. The very basis of writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted the very functioning of the Writ Courts would become impossible. The jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. It is well settled that a prerogative remedy is not a matter of course and it is thus of utmost importance that a petitioner approaching the Writ Court must come with clean hands and put forward all the material facts without concealment or suppression. It there is no frank and candid disclosure of the relevant and material facts or that the petitioner is guilty of misleading the Court and the petition is liable to be dismissed. In fact, the Courts have gone to the extent of saying that in such circumstances, a Court may refuse to enter into the merits of the case. A party whose hands are soiled cannot hold the writ of the Court. In such situations, the aid of the Court is denied in order to maintain respect for the law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination (Miscellany-at-Law by R.E. Megarry, 2nd Indian Reprint 2004 at page-144). The rule has evolved in public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. In the facts and circumstances aforesaid and in the light of the prayers in the petition, I am of the view that the petitioners are guilty of misleading the Court and have deliberately, intentionally and mischievously suppressed the order dated 28 January, 2011 passed in Misc. Case No.26/2009.[Para No.13]

19 April 2021

Testamentary disposition by Will is not a 'transfer' as defined u/s.5 of the Transfer of Property Act

It is not necessary to obtain a probate in respect of properties which are not situated whithin the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay


    In view of the rival submissions made on behalf of the parties, it will be necessary to refer to some of the provisions of the Ceiling Act and the Succession Act. Section 29 of the Ceiling Act reads thus:-
"Section 29. (1) Without the previous sanction of the Collector, no land granted under Section 27 or granted to a joint farming society under Section 28 shall be -
(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any competent authority) or by way of gift, mortgage, exchange, lease or otherwise; or
(b) divided whether by partition or otherwise, and whether by a decree or order of a Civil Court or any other competent authority, such sanction shall not be given otherwise than in such circumstances, and on such conditions including condition regarding payment of premium or nazarana to the State Government, as may be prescribed;
    Provided that, no such sanction shall be necessary where land is to be leased by a serving member of the armed forces or where the land is to be mortgaged as provided in Sub-section (4) of Section 36 of the Code for raising a loan for effecting any improvement of such land.

(2) If sanction is given by the Collector to any transfer or division under Sub-section (1) subsequent transfer or division of land shall also be subject to the provisions of Sub-section (1).

(3) Any transfer or division of land, any acquisition thereof, in contravention of Sub-section (1) or Sub-section (2) shall be invalid; and as a penalty therefor, any right, title and interest of the transferor and transferee in or in relation to such land shall, after giving him an opportunity to show cause, be forfeited by the Collector and shall without further assurance vest in the State Government."

    This Court in the aforesaid case of Vimlabai vs. State of Maharashtra, cited supra, after considering the judgments on the point, has held that the transfers which are by act of parties made inter vivos or a result of a decree or an order of the Court, Tribunal or Authority, are alone covered by the said term as defined in Explanation (2) of Section 8 of the Ceiling Act. This Court has further held that it will not include the testamentary dispositions of the property not made inter vivos. Thus, this Court has taken a view that a testamentary disposition by Will is not covered by the word 'transfer' as per the provisions of Section 5 of the Transfer of Property Act. This Court has further while dealing with the certain provisions of the Ceiling Act has in unequivocal terms held that the transfer under the Ceiling Act would not include the testamentary disposition of the property not made inter vivos. In that view of the matter, insofar as the findings of the learned S. D. O. that the transfer is bad in law in view of provisions of Section 29(3) of the said Act is not sustainable in law.[Para No.6]

    The next question that arises is whether it is necessary to obtain a probate, so as to claim right as executor or legatee for the lands in question.[Para No.7]

    It would be appropriate to refer to certain provisions of the Succession Act. The relevant portion of Section 213 reads as under:-
Testamentary disposition by Will is not a 'transfer' as defined u/s. 5 of the Transfer of Property Act
"S. 213. Right as executor or legatee when established. - (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

11 April 2021

Death caused; without any premeditation, in a sudden fight, in the heat of passion, without taking any undue advantage or acted in a cruel or unusual manner, is not a murder

Admittedly, both the parties belonged to the same family and reside in the same campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW-2 and PW-12 is that when the appellant was washing his face in the morning, the PW-2 (son of the deceased) initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy, whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him (deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW-12, it is also discernible that at the beginning when the PW-2 challenged the appellant for the previous incidence of cutting paddy, the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence, it has been established that the accused, who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre-meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre-meditation and in the heat of passion during sudden quarrel, the appellant could not have been held liable for offence of murder. However, the facts and circumstances under which the appellant inflicted the injury causing death of the deceased, he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC.[Para No.28]

    In Rajender Singh v. State of Haryana (supra) in a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC, held as under:
"19. Consequently, we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self-defence, the same would amount to culpable homicide not amounting to murder, which was committed without any premeditation in a sudden fight in the heat of passion
Death caused; without any premeditation in a sudden fight in the heat of passion without taking any undue advantage or acted in a cruel or unusual manner, is not a murder
upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner, which would normally fall under Exception 4 of Section 300 IPC.
Consequently, at best, conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason, the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient."[Para No.29]

06 April 2021

It is appropriate case for grant of anticipatory bail when F.I.R. is lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant in near proximity of time

The following can be considered as "appropriate cases" for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court :-
1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court;
2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits.
    The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only.
    When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases.
3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in mear
It is appropriate case for grant of anticipatory bail when F.I.R. is lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant in near proximity of time
proximity of time. The motive of lodging the false F.I.R/complaint is apparent and from the material collected by the Investigating Officer or from the statements of witnesses in complaint case, there is no consideration of the earlier F.I.R lodged/complaint filed by the accused against the informant/complainant;
4) Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged;
5) Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused;
6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;

16 March 2021

Signed carbon copy prepared in the same process as the original document assumes the character of the original document

This appeal is directed against the judgment dated 15.01.2009 passed by the Punjab and Haryana High Court dismissing the appeal holding that there is no substantial question of law involved. The High Court held that a carbon copy of a document which carbon copy is signed by both the parties cannot be termed as an original document under Section 62 of the Evidence Act. This finding of the High Court is absolutely incorrect and against the provision of Section 62 of the Evidence Act. This carbon copy was prepared in the
Signed carbon copy prepared in the same process as the original document assumes the character of the original document
same process as the original document and once it is signed by both the parties, it assumes the character of the original document.
[Para No.1]

13 March 2021

Availability of civil or arbitral remedy for breach of contract, does not mean that initiation of criminal proceedings will be an abuse of the process

In the matter under consideration, if we try to analyse the guidelines of which a reference has been made, can it be said that the allegations in the complaint/FIR/charge-sheet do not make out a case against the 2nd respondent or do they disclose the ingredients of an offence alleged against the 2nd respondent or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the 2nd respondent.[Para No.29]

   In the instant case, the complaint/FIR/charge-sheet as noticed above, does, however, lend credence to the questions posed. It is settled that one is not supposed to dilate on this score, or intend to present that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this stage, as noticed above, whether the allegations in the complaint were true is to be decided on the basis of the evidence led at the stage of trial and the observations on this score in the case of Nagpur Steel & Alloys Pvt. Ltd. Vs. P. Radhakrishna and Others ought to be noticed. In para 3, this Court observed:-
“3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was
Availability of civil or arbitral remedy for breach of contract, does not mean that initiation of criminal proceedings will be an abuse of the process
committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case.
It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously.”[Para No.30]

12 March 2021

Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions

Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR 282, is also relevant on the point involved in the petition. Note of certain earlier decisions right from Privy Council were taken. In Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed that ;
"No doubt cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned".[Para No.14]

    In Yeshpal's case (Supra) it has been observed that, "While Courts will not ordinarily interfer with the proper exercise of the right of cross-examination the Courts have the power and authority to control the cross-examination of a witness".
    This Court is not agreeing with the submission by learned Advocate for petitioners that, the Court cannot control the cross-examination or he has free hand at the time of cross-examining the witness of the prosecution; but then agree to the submission that the cross- examination need not be restricted to what the witness has stated in his examination-in-chief. A balance has to be struck here while issuing directions to the learned Additional Sessions Judge that he has to decide the relevancy of the question which he may 
Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions
get explained from the learned advocate for the accused orally and then allow him to put the said question to the witness. On any count learned Additional Sessions Judge will not be justified in entirely putting the shutter down while disallowing of the questions and asking the defence advocate to restrict himself while cross- examining
P.W.18 to the post mortem examination report Exhibit 216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore, again clarified that neither the learned advocate for the accused has unfettered right to put any question to the witness in the cross- examination but at the same time the learned Additional Sessions Judge shall also not restrict him in putting questions in the cross to the above referred documents only. There might be certain questions which would be beyond those documents and as an expert they are required to be elucidated from him. No straight jacket formula can be laid down as to what should be permitted and what should not be permitted as it depend upon the question that would be put and the relevancy and admissibility of the same and / or of the admissibility will have to be decided at that time. Definitely the learned Additional Sessions Judge is guided by the procedure laid down in Bipin Panchal's case (Supra), and it is specifically laid down that, it may be advantages for the Appellate Court in future. He has to bear those advantages which have been laid down in para No.15 of the case, in mind while recording the evidence.[Para No.15]

11 March 2021

Statement of witness recorded u/s.164 of Cr.P.C. is not substantial evidence

Section 164 of the CrPC , 1973 enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.[Para No.68]

    As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only to advert to the following judgment, i.e., in George and others v. State of Kerala and another, AIR 1998 SC 1376:
"In making the above and similar comments the trial Court again ignored a fundamental rule of criminal
Statement of witness  recorded u/s.164 of Cr.P.C. is not substantial evidence
jurisprudence that a statement of a witness recorded under S. 164, Cr.P.C. , cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him."[Para No.69]

    What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala, AIR 2013 SC 651:
"15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000 Air SCW 3150).

08 March 2021

Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day

In Nathi Lal vs State of UP reported in 1990 Supp SCC 145, the Apex Court has succinctly held that the case and counter case should be tried by the same judge one after the other and both the judgments must be pronounced by the same Judge one after the other. Observation of the Apex Court in this regard is as under:
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other"[Para No.9]

    The same law was reiterated by the Apex Court in Sudhir and Ors. vs. State of MP reported in (2001) 2 SCC 688 in which the Apex Court held as under:
"8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable,
Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day
be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other."[Para No.10]

    In the said judgment the Apex Court further held as under:
"12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:
"323.If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."

28 February 2021

Deed of gift/hiba executed by a Mohammadan need not required to be registered

The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift;
Deed of gift/hiba executed by a Mohammadan need not required to be registered
such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.[Para No.27]


    Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :
"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."[Para No.28]

14 February 2021

Plaint should contain exact details of the specific date, month, year, etc.of creation of the HUF for the first time; mere statement that HUF exists and property belongs to HUF is not sufficient

Reference may again be had to the judgment of a Coordinate Bench of this court in the case of Promod Kumar J ain & Ors. vs. Ram Kali J ain & Ors., (supra) where the court held as follows:-
"13. Reference on the aspect of HUF can be made to:
(i) Neelam Vs. Sada Ram MANU/DE/0322/2013, holding (i) that the Hindu Succession Act, 1956 did away with the concept of ancestral properties as existed prior thereto; after coming into force thereof, the property inherited by a male from his father is held as self-acquired property in which children of such male do not acquire any right by birth; (ii) that the plea of property being a joint family property owing to being jointly owned by members of a family, is not the plea of existence of a coparcenary or HUF; (iii) that HUF and coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same; (iv) that the law of succession, after coming into force of the Hindu Succession Act is governed thereby only; of course Section 6 thereof carves out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act; (v) however in the absence of any plea of existence of any coparcenary, merely on the plea of the property being of the joint family, no inference of a coparcenary arises; (vi) for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed a HUF since prior to the coming into force of the Succession Act and which HUF, by virtue of Section 6 of the Act has been permitted to be continued.

(ii) Surender Kumar Vs. Dhani Ram MANU/DE/0126/2016 : AIR 2016 Del 120 holding as under:

"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen, MANU/SC/0265/1986 : (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.

6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.

7. On the legal position which emerges pre 1956 i.e. before passing of the Hindu Succession Act, 1956 and post 1956 i.e. after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) v. Sh. Raj Singh, CS(OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides
Plaint should contain exact details of the specific date, month, year, etc.of creation of the HUF for the first time; mere statement that HUF exists and property belongs to HUF is not sufficient
that all necessary factual details of the cause of action must be clearly stated.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property.

9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.

13 February 2021

Agreement of sale signed only by the vendor is valid and enforceable by the purchaser

We find that neither of the two decisions have addressed the real issue and cannot be said to be laying down the correct law. The observation in Md. Mohar Ali (supra) stating that an agreement of sale is an unilateral contract is not correct. An unilateral contract refers to a gratuitous promise where only party makes a promise without a return promise. Unilateral contract is explained thus by John D. Calamari & Joseph M. Perillo in The Law of Contracts (4th Edition Para 2-10(a) at pages 64-65):
If A says to B, 'If you walk across the Brooklyn Bridge I will pay you $ 100,' A has made a promise but has not asked. B for a return promise. A has asked B to perform, not a commitment to perform. A has thus made an offer looking to a unilateral contract. B cannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no point is B bound to perform. If B does perform, a contract involving two parties is created, but the contract is classified as unilateral because only one party is ever under an obligation. All agreements of sale are bilateral contracts as promises are made by both -the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions . of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.[Para No.7]


    The defendant next contended that the agreement of sale in this case (Ex.2) was clearly in a form which required signatures of both vendor and purchaser. It is pointed out that the agreement begins as: "Agreement for sale between Kanika Bose and Parmatma Devi" and not an "Agreement of sale executed by Kanika Bose in favour of Parmatma Devi". Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which reads thus: "In witnesses whereof, the parties hereto have hereunto set and subscribed their respective hands and seals on these presents." It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. We have carefully examined the agreement (Ex.2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer 'subscribe their respective hands and seals'. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention 
Agreement of sale signed only by the vendor was valid and enforceable by the purchaser
of the parties was that it should be complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7.9.1979) by the vendor acknowledging the receipt of Rs. 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10.10.1979 by the vendor, acknowledging the receipt of a further sum of Rs. 2000 and confirming that the total earnest money received was Rs. 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgement thereon on 10.10.1979. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.[Para No.8]

07 February 2021

Falsely implicating husband and his family in domestic violence case with intention to ensure that the parties were sent to counselling in order to settle their disputes amounts to mental cruelty entitling husband to seek divorce

Allegations of cruelty in divorce case should be specifically challenged in cross examination



    Now, given that matrimonial disputes rarely involve production of concrete evidence in documentary or audio-visual form, and mostly proceed on the relative strength of the opposing allegations made by the parties, the entire process of leading and recording evidence has a significant role to play in establishing one's case. Thus, notwithstanding her denials in the written statement, the appellant was expected to properly and specifically cross-examine the respondent to prove her allegations of cruelty against him and disprove those he had levelled against her. The importance of properly discharging this function of cross-examination was discussed by the Supreme Court in the following paragraphs of its decision in Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69:
"4. The only point urged albeit strenuously on behalf of the appellant by Mr P.S. Mishra, the learned Senior Counsel is that as there has been no valid service of notice, so all proceedings taken on the assumption of service of notice are illegal and void. He has invited our attention to the judgment of the learned Rent Control Tribunal wherein it is recorded that Exhibit AW 1/6 dated 5-8-1986 was sent by registered post and the same was taken by the postman to the address of the tenant on 6-8-1986, 8-8-1986, 19-8-1986 and 20-8-1986 but on those days the tenant was not available; on 21-8-1986, he met the tenant who refused to receive the notice. This finding remained undisturbed by both the Tribunals as well as the High Court. Learned counsel attacks this finding on the ground that the postman was on leave on those days and submits that the records called for from the post office to prove that fact, were reported as not available. On those facts, submits the learned counsel, it follows that there was no refusal by the tenant and no service of notice. We are afraid we cannot accept these contentions of the learned counsel. In the Court of the Rent Controller, the postman was examined as AW 2. We have gone through his cross-examination. It was not suggested to him that he was not on duty during the period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross-examination of the postman on this crucial aspect, his statement in the chief examination has been rightly relied upon. There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh (1998) 3 SCC, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: (SCC p. 567, para 14) "14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.' (emphasis supplied)[Para No.11]


    Although the appellant, in the grounds adopted in the appeal, has assailed the reliance of the learned Family Court on the decision in State of U.P. v. Nahar Singh (1998) 3 SCC 561 to contend that the same was a criminal case and the precedent arising therefrom could not apply to cross examinations in matrimonial proceedings, which are civil proceedings by nature, there is no merit to this opposition; especially in the light of the observations of the Supreme Court in Darshana Devi's case which was a civil proceeding. In fact, the standard of proof in a matrimonial proceeding- which is also in the nature of a civil proceeding is not as strict, as in criminal proceedings. Thus, the case is required to be proved on preponderance of probabilities and not the legal standard of being beyond a reasonable doubt. Keeping in view the aforesaid, it is evident that there was a crucial responsibility placed on the shoulders of the appellant which was to ensure that she challenged the specifics of the allegations raised by the respondent and establish their lack of veracity. Paragraphs 44 to 46 of the impugned judgment clearly show that the appellant had not cross-examined the respondent/husband on these important aspects, and, thus, completely failed to draw out the facts as claimed by her. In fact, even before us, the appellant, other than contending that the onus of proving cruelty rested upon the respondent, has failed to provide any cogent reasons for failing to cross-examine the respondent in support of her own case, or to challenge his allegations of cruelty. It is a settled proposition of law that the Court would normally accept unchallenged and uncontroverted assertions of fact. The failure of the appellant to effectively cross-examine the respondent shows that she neither seriously challenged his version of the factual position, nor established her own version. Therefore, in our view, the Family Court was justified in accepting the unrebutted testimony of the respondent.[Para No.12]


    When we view this in addition to the fact that in her written statement, the appellant had admitted to having levelled false allegations against the respondent and his family under the DV Act, we find there were plenty of holes in the appellant's story. Her feeble explanation for this ill-thought out act of falsely implicating the respondent and his family was that the same was not done malevolently, but only with an intention to ensure that the parties were sent to counselling in order to settle their disputes. That explanation barely comes to the aid of the appellant considering that the Supreme Court in K. Srinivas Rao Vs. D.A. Deepa 2013 III AD (SC) 458 has already held that any act of making unfounded complaints to the police shall be treated as an act of mental cruelty. The relevant extracts of this decision read as under:
"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

30 January 2021

Provisions of RTI Act are not meant to allow the parties to collect evidence from Public Authorities to sub­serve their private interest

As we have said above only the larger public interest duly established with relevant material which can override this confidentiality of the information and documents available with the Income Tax Department, but we fail to see even an iota of the public interest in this case. The tall claims made in the application about the alleged effort of the private Respondents to evade income tax under the garb of the claim of a status of their being agriculturists, particularly by a person who is admittedly in litigation over the same land in question with these Respondents, which is said to have been sold by them to the Petitioner as well as private Respondents. Therefore, the only interest of the Petitioner who has been fighting against these private Respondents at all possible forums including the RTI Act and criminal complaints appears to be the only private interest and the name of a public interest is just a ruse or excuse given to the public authorities calling upon them to disclose such 'information' to the Petitioner - Applicant. The provisions of the RTI Act
Provisions of RTI Act  are not meant to allow the parties to collect evidence from Public Authorities to sub­serve their private interest
are not meant to allow the parties to collect evidence from such Departments or Public Authorities to sub­serve their private interest.
[Para No.14]

25 January 2021

Right to vote, contest or dispute election is not fundamental right

It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a
Right to vote, contest or dispute election is not fundamental right
fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination A of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies. In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute was not pressed by the respondents before the High Court.[Para No.6]

24 January 2021

Rejection of application u/s.156(3) of CrPC does not bar the complainant to file second regular complaint case

Rejection of a complaint at the pre-cognizance stage under Section 156(3) Cr.P.C. does not debar institution of second regular complaint. It would be post-cognizance stage, if the
Rejection of application u/s.156(3) of CrPC does not bar the complainant to file second regular complaint case
Magistrate takes cognizance on the original complaint or after rejection at pre-cognizance stage, if second complaint is filed by the complainant. In genuine cases, if averments of the complainant are true and trustworthy or these are found so after preliminary inquiry, then the Magistrate under section 156(3) Cr.P.C. may direct the S.H.O. to register F.I.R. and conduct investigation on the basis of averments of the complaint.[Para. No.7]

    The Magistrate may dismiss the complaint under Section 156(3) Cr.P.C. if by way of instituting complaint, defence version is created to absolve the complainant from the case registered earlier or on the basis of allegations made in the complainant, if dispute is purely of civil nature or the Magistrate considers that the complaint is false and frivolous. The Magistrate has to power to test the truth and veracity of the allegations levelled against the proposed accused persons and if there is no substance in the averments of the complainant then at pre-cognizance stage, the complaint may be dismissed under section 156(3) Cr.P.C.[Para No.8]

...........

     On the basis of facts narrated in the complaint, the complainant is capable to adduce evidence regarding alleged incident of misappropriation of property of government school and trees, etc., by the respondents. The respondents abused the complainant indicating his caste as per the facts narrated in the complaint. These facts may be proved by adducing evidence by the complainant. This fact that respondents are pressurizing the complainant to compromise the matter is within the knowledge of complainant, it may also be proved by the complainant by adducing evidence.[Para No.11]

...........

     On the basis of above discussions, this appeal is liable to be dismissed.[Para No.13]

...........

    Learned Second Additional Sessions Judge / Special Judge, (S.C./S.T. Act), Lakhimpur Kheri has considered the facts on the basis of which complaint under Section 156(3) Cr.P.C. was instituted by the complainant. At post cognizance stage the complainant may institute regular complaint on the basis of which, the learned Second Additional Sessions Judge/ Special Judge, (S.C./S.T. Act), Lakhimpur Kheri may record statement of complainant under Section 200 Cr.P.C. and the evidence under Section 202 Cr.P.C. and proceed according to law on regular complaint if instituted by the complainant. The impugned order dated 15.12.2020 will have no effect on the regular complaint, if instituted by the complainant[Para No.15]

21 January 2021

Sub-Registrar cannot refuse registration of document only on the ground that the title of the transferor, in his opinion, is defective

Learned APP submitted that the 7/12 extracts of the lands which were transferred showed the words "Akari Pad" in the occupant's column which indicate that the lands belonged to the government. Sub-Registrar ought to have verified the 7/12 extracts (revenue records) and should have refused the registration of the sale deeds. Selling the government lands amounted to a fraud on the government and by registering the sale deeds without verification of revenue records the applicant has committed an offence. It is settled principle of law that entries in the revenue records (7/12 extracts in case of agricultural lands and property register cards in case of urban lands) are made for fiscal purposes. They do not confer nor take away the title. Entries in the 7/12 extracts, though may have some presumptive value under the Maharashtra Land Revenue Code, are not by themselves proof of title nor do they confer title. Therefore, the mere fact that the properties were shown as "Akari Pad" that by itself was not the proof that the government was the owner of the lands. Even assuming that the government was the owner of the lands, as I have already indicated earlier section 34 of the Act does not require nor does it empower the Sub-Registrar to enquire into the title and to satisfy himself about the title of the transferor. Under the Act the Sub-Registrar is not required, nay not entitled, to ask the transferor to produce 7/12 extracts, property register extract or the like showing the transferor to be the owner of the property.
Sub-Registrar cannot refuse registration of document only on the ground that the title of the transferor, in his opinion, is defective
If he refuses registration of a document on the ground that the revenue records do not show the name of the transferor as the owner he would be exceeding his powers under the Act. If all other requirements of registration prescribed by the Act and the Rules are complied with, the Sub-Registrar cannot refuse the registration of a document only on the ground that the title of the transferor, in his opinion, is defective, or that the name of transferor is not shown as owner in the revenue records.[Para No.5]

14 January 2021

Litigants who, with an intent to deceive and mislead the Courts, initiate proceedings without full disclosure of facts, is not entitled to any relief, interim or final

Further, the petitioner has concealed from this Court several orders passed by this Court as well as other Courts. She has not come to Court with clean hands. It is well settled that litigants who, with an intent to deceive and mislead the Courts, initiate proceedings without full disclosure of facts, such litigants have come with unclean hands and are not
Litigants who, with an intent to deceive and mislead the Courts, initiate proceedings without full disclosure of facts, is not entitled to any relief, interim or final
entitled to relief.
In 'Dalip Singh vs. State of Uttar Pradesh &Ors.' [(2010) 2 SCC 114] the Supreme Court observed that:
"In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final".[Page No.9]

12 January 2021

Arbitration agreement bears an independent existence, hence, it can be acted upon, even if the main contract is invalid

The second issue in SMS Tea Estates that a voidable contract would not be arbitrable as it affects the validity of the arbitration agreement, is in our view not the correct position in law. The allegations made by a party that the substantive contract has been obtained by coercion, fraud, or misrepresentation has to be proved by leading evidence on the issue. These issues can certainly be adjudicated through arbitration.

    We overrule the judgment in SMS Tea Estates with respect to the aforesaid two issues as not laying down the correct position in law.[Para No.6.9]

    The Garware judgment has followed the judgment in SMS Tea Estates. The Counsel for the Appellant has placed reliance on paragraph 22 of the judgment to contend that the arbitration clause would be non- existent in law, and unenforceable, till Stamp Duty is adjudicated and paid on the substantive contract.

    We hold that this finding is erroneous, and does not lay down the correct position in law. We have already held that an arbitration agreement is
Arbitration agreement bears an independent existence, hence, it can be acted upon, even if the main contract is invalid
distinct and independent from the underlying substantive commercial contract. Once the arbitration agreement is held to have an independent existence, it can be acted upon, irrespective of the alleged invalidity of the commercial contract.
[Para No.6.10]

03 January 2021

Court must give reasoning as to why it has accepted the contentions of one party and rejected those of other party

For the foregoing discussion, the finding of learned Commercial Court, Jammu that the said Court does not have territorial jurisdiction to entertain the instant petition under Section 9 of the Act filed by the appellant, does not deserve to be interfered with. However, the manner in which the Court below has passed the impugned judgment invites a comment. A perusal of the said judgment clearly shows that it is cryptic and devoid of any reason. The learned Court has only noted the pleadings and submissions of the parties and then without giving any reasoning as to why it has accepted the contentions of one party and rejected those of other party, it has drawn the conclusion against the petitioner.[Para No.28]

    Reasoning is the soul of a judgment. A judgment which is
Court must give reasoning as to why it has accepted the contentions of one party and rejected those of other party
devoid of reasoning would not be a judgment in accordance with the law.
It is not sufficient for a Court merely to state in its judgment that on a careful consideration of the rival submissions of the parties, it has come to this or that conclusion. The material on record on a particular point for and against the parties to the case must be set out in the judgment and reasons stated for its acceptance or rejection. A Court has not only to state the points for determination and the decisions thereon, but also to give reasons for such decisions. All this is missing in the judgment passed by the learned Commercial Court, Jammu. Such type of judgments are not expected from a senior Judicial Officer of the level of a District Judge.[Para No.29]
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