Showing posts with label high court. Show all posts
Showing posts with label high court. Show all posts

04 October 2020

It amounts defamation u/s.499 of IPC if defamatory contents of pleading filed in a matrimonial case are revealed to relatives and friends of complainant

Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition Crl.R.P.No.152/2014, in her argument stating that the pleadings filed in a Court and the deposition given in a Court of Law are not privileged one and further stating that a pleading filed in the Court also amounts to publication, has relied upon few judgments in her support as follows.
    In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in 1990 CRL.L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication. It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.

It amounts defamation u/s.499 of IPC if defamatory contents of pleading filed in a matrimonial case are revealed to relatives and friends of complainant

    In the case of M.K. Prabhakaran and another Vs.T.E. Gangadharan and another reported in 2006 CRI.L.J. 1872, the Kerala High Court, in a matter where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court held that, once a statement has been filed in a Court of Law, that statement can be taken as published. If such a statement amounts to per se defamatory, then it is the duty of the accused to establish that, they are justified in making such a statement under any of the exceptions to Section 499 of IPC. 

    In the case of Sanjay Mishra Vs. Government of NCT of Delhi & another, the Delhi High Court in paragraphs 11 and 12 of its judgment was pleased to observe as below:-
"11. In Sandyal V.Bhaba Sundari Debi 7 Ind.Cas.803:15 C.W.N. 995:14 C.L.J.31 the learned Judges, following the case of Augada Ram Shaha V. Nemai Chand Shaha 23 C.867;12 Ind.Dec.(n.s.)576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege in this regard cannot be claimed in respect of such statements, unless they fall within the Exceptions to Section 499 of the Indian Penal Code. Undisputedly, the case of the petitioner was not in any of these Exceptions.
    12. For criminal purposes "publication" has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved...."
    
    In the case of Thangavelu Chettiar Vs. Ponnammal reported in AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.[Para No.15]

02 October 2020

Husband is duty bound to maintain his dependants, regardless of his job and income

Insofar as the plea of the petitioner that he has no means to pay maintenance is concerned, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Sumitra Devi vs Bhikan Choudhary, reported in [1985] 1 SCC 637, wherein, it has been held as follows:
“4.Now that the matter is going back to the original Court we think it appropriate to bring it to the notice of the learned Magistrate that under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance.
Husband is duty bound to maintain his dependants, regardless of his job and income

    Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”[Para no.13]


    The Hon'ble Supreme Court in Bakulbhai and another vs Gangaram & another, reported in 1988 SCC (1) 537 has held that even an illegitimate child is entitled for maintenance and the relevant portion of the judgment reads as follows:
“The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows:
"16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."

Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document

In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :
 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: 
Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document
     Proviso  (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
[Para No.16]

    As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "[Para No.17]

01 October 2020

Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference can be drawn against prosecution

If it appears impossible to convict accused inspite of witnesses are presumed to be true without any cross examination, the accused deserves to be discharge



    The Hon'ble Supreme Court in the case of Manjeet Singh Khera Vs. State of Maharashtra: 2013 (9) SCC 276 held as under:
Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference cam be drawn against prosecution

"........8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the Court only those documents which supports the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the Court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the Court under Section 173(5) Cr.P.C. but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect:
"21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."[Para No.63]

30 September 2020

Chairman/Managing Director of a news channel/house can be held liable for publication of the offending news item only if he has any role in selecting the news and publishing the same with active knowledge and intent

Chairman/Managing Director of a news channel can be held liable for publication of the offending news item only if it can be shown that he was somehow concerned with publication of the defamatory news item and that he had active knowledge thereof. As held in S Nihal Singh & Ors. v. Arjan Das; 1983 Cri. L.J. 777, an individual cannot be asked to answer the charge of defamation merely because he happened to be the Chairman of a company which owns a newspaper, without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company.[Para No.13]

    So, the whole concept of fastening liability hinges on knowledge. As held in Kalanithi Maran v. A Rathinaraj; 2017 SCC Online Mad 9723 and G K Mani v. New Generation Media Corporation (P.) Ltd; 2019 SCC Online Mad 8332, for fastening liability, what is of paramount importance is that knowledge has to be attributed to the accused person. In Kalanithi (supra), the petitioner is the Chairman-cum- MD of Sun TV Network Ltd. and the complaint was filed against him for telecasting an interview between the complainant and one person, on the allegation of falsity of the statement given in the news and consequently, the MD is equally responsible for telecasting such defamatory statement. The Hon'ble High Court held as below:-

Chairman/Managing Director of a news channel/house can be held liable for publication of the offending news item only if he has any role in selecting the news and publishing the same with active knowledge and intent
"Vicarious liability under Press and Registration of Books Act, 1867, is not applicable to electronic media. Therefore, only general rule is applicable in the present case. To attract the offence of defamation, the imputation must have been made with the knowledge or intention or at least with reason to believe that it will harm the person concerned."[Para No.14]

When applicant is arrayed as accused because he is the owner of vehicle involved in sand theft crime then without swaying into the controversy of manipulation/mismatching of engine/chassis number, vehicle can be returned u/s.457 to him

It is indeed a matter having unpleasant history. The vehicle was seized for allegedly carrying stolen sand and was intercepted and seized and admittedly since its seizure it is laying in the premises of the police station concerned. Admittedly, the applicant is being implicated being the owner of the tractor. If such is the state of affairs, in the normal course, there would not have been any difficulty in straight away handing over the vehicle to him subject to usual conditions. It is trite that the Supreme Court time and again has expressed futility in allowing detention of vehicles during the course of the trial. One can fruitfully referred to the decisions in the case of Smt. Basava and Sunderbhai (supra).[Para No.12]

When applicant is arrayed as accused because he is the owner of vehicle involved in sand theft crime then without swaying into the controversy of manipulation/mismatching of engine/chassis number, vehicle can be returned u/s.457 to him

    However as can be discerned, the matter has become complicated because of changes in the chassis and engine numbers appearing on the tractor. The panchnama under which the tractor was seized mentions that at the time of such seizure the chassis number was appearing as "0065110367V1DH" and the engine number was appearing as "CO6014709VIDK013B". Apparently no photograph of such number as they were appearing on the chassis and engine were taken. The petitioner had applied for release of the tractor earlier to the present attempt by filing Criminal M.A. No.569/2017 but it was rejected since the numbers obviously did not tally. He preferred Criminal Revision No.220/2017. It was dismissed but a direction was given to the RTO to inspect and to register the vehicle. Pursuant to such a direction the Magistrate called upon the RTO concerned to undertake the inspection and to register the tractor since it was not registered till then with the RTO. It is apparent that the RTO thereafter undertook the inspection on 26.12.2018 (page 40) and submitted a report on the same date to the Superintendent of the Civil Court at Sillod. In addition he sent another letter dated 08.01.2019 (page 43). It was mentioned that the tractor was having chassis number and engine number which tally with the original numbers mentioned by the dealer on the Tax Invoice (Exhibit B). However, he also notice that the tractor was not in a road worthy condition and therefore for the reasons mentioned therein he was unable to register it because of various provisions contained in the Motor Vehicles Act and the Rules framed thereunder. It is in the backdrop of such state of affairs that now we are faced with the situation.[Para No.13]

29 September 2020

For the purpose of deciding the period of notice of termination of lease, only the purpose for which the property was let out has to be seen and subsequent change in user would not change the nature of lease

Coming to the issue regarding validity of notice issued under Section 106 of the Act, it would be noticed that the notice issued was dated 27.06.2015 and the tenancy was terminated w.e.f. 30.06.2015 i.e. within three days, however, the suit was filed on 04.08.2015 i.e. after about one month of giving of the notice. The provisions of Section 106 of the Act, inter-alia, provides that a lease of immovable property is terminable on part of either lessor or lessee by 15 days' notice and in case of lease of immovable property for agriculture or manufacturing purposes by six months' notice. However, sub-section (3) of Section 106 of the Act provides that a notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under sub-section (1), where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section and therefore, if it is found that the lease is for the purpose other than manufacturing purpose merely giving a three days' notice would not invalidate the proceedings.


    The appellant himself in his statement has clearly admitted that he was a tenant in the shop since 1976, in the year 1976, his shop was that of cloth in the name of Shankar Cloth Store, he changed his business in the year 1990-91 and started work of dye cutting of jewellery in the name of Mankad Jewellers.


  From the above statement, it is apparent that when the shop was let out in the year 1976, the same was neither for agriculture purpose nor for manufacturing purpose as the appellant was selling cloth only, however, in the year 1991, the use of shop was changed to manufacturing purpose. Whether in these circumstances, the issuance of notice by treating the lease for purpose other than manufacturing purpose i.e. notice for less than six months / filing the suit before expiry of six months from the date of notice would be in compliance of provisions of Section 106 of the Act?


   The various Courts have dealt with the said aspect and have come to the conclusion that the relevant purpose of lease under Section 106 of the Act is the purpose for which the lease was initially granted and subsequent change would not effect duration of the notice.


For the purpose of deciding the period of notice of termination of lease, only the purpose for which the property was let out has to be seen and subsequent change in user would not change the nature of leass

   Bombay High Court in the case of Ruprao Nagorao Mahulkar (supra), inter-alia, observed as under :-

"16. I, however, think that for the purposes of section 106 what is relevant is the purpose for which the lease was obtained at the time when the lease was obtained. A subsequent change of use and subsequent employment of the premises taken on lease for a manufacturing purpose where they were not at the commencement taken for that purpose would not entitle a lessee to take advantage of section 106. The purpose of the lease must be found arid ascertained with reference to the time when the lease was brought into existence. This seems to me also consistent and in accordance with the other provisions of the Transfer of Property Act and law in that behalf. Section 108 (a) of the Transfer of Property Act speaks of rights and liabilities of the lessees. In the absence of a contract of local usage to the contrary, a lessee is under an obligation by virtue of section 108 (a) of the Transfer of Property Act to use the leased premises for the purpose for which they were let and is obliged not to use them "for the purpose other than for which it was leased." To do so therefore, would be a, breach of the terms and conditions of the lease which are implied in the absence of the contract to the contrary. Section 111 (g) of the Transfer of Property Act provides that where a lease permits a re-entry on breach of a condition, then the lessor would be entitled to determine the lease and re- enter. Section 106 of the Transfer of Property Act also provides for termination of leases. A breach of terms and conditions of the lease would entitle a lessor to terminate the lease and to re-enter. In Devji's case (supra) Justice P.B. Mukherjee also observed that "the lease for manufacturing purpose must be a lease which at its inception is for that purpose. The lease at the time of the grant by the landlord must be impressed with the purpose of manufacture." Per contra-where it is not so impressed and where that was not the purpose at the time when the lease was commenced, the lessee would not be entitled to take advantage of section 106 of the Transfer of Property Act."

...........

When addressee refuses to accept registered post, it is presumed due service and knowledge of contents of letter can always be imputed on the addressee

Coming to the issue regarding the alleged non-service of notice under Section 106 of the Act on the appellant, a bare look at the Exhibit-6, which is an undelivered Registered A/D envelop sent to the appellant reveals that the same was sent by the counsel for the plaintiff to the appellant. The appellant in his statement admitted that the address indicated on the envelop was correct. The envelop clearly bears the endorsement made by the postman regarding refusal to receive the article. It is well settled that a notice sent under Section 106 of the Act, if refused by the tenant, the same is a sufficient service of the notice.


    Hon'ble Supreme Court in Puwada Venketeswara Rao v. Chidamana Venkata Ramana : AIR 1976 SC 869, observed that where a notice by registered post is returned with endorsement 'refused' it is not always necessary to produce the postman who tried to affect the service.

When addressee refuses to accept registered post, it is presumed due service and knowledge of contents of letter can always be imputed on the addressee

    In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani : 1989 (2) SCC 602, the Supreme Court observed as under:

"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the Party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24-4-1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect."

Accused can be released on interim bail on the ground of snail speed of the trial

Successive application for bail is permissible under substantial change of circumstances which has direct impact on the earlier decision and not merely cosmetic changes


    This bail application of the petitioner being the sixth one before this Court, it is to be kept in mind the settled principle of law that successive application for grant of bail to an accused is permissible under the changed circumstances which must be substantial one and which has got a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence inasmuch as without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. Of Course, the principle of res judicata is not applicable while considering the successive bail application but the issues and grounds which have been canvassed earlier would not be ordinarily permitted to be re- agitated. If some important aspects of the case could not be placed earlier inadvertently and the Court feels that such aspects have a direct bearing on the result of the case, in the interest of justice, the Court can consider the same in the subsequent application.[Para No.5]

    ......... While rejecting the last bail application of the petitioner in BLAPL No.1053 of 2019, it has already been held that the detention of the petitioner has virtually become pre-trial punishment to him as the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and moreover, the petitioner has not contributed to the delay. Though direction was given to the learned trial Court to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of witnesses but it seems that even after the said order was received by the learned trial Court, the learned trial Court has neither followed the provision under section 309 of Cr.P.C. nor kept in view the observation made by this Court while disposing of the earlier bail application. No special reason has been assigned by the learned trial Court in adjoining the case to long dates. Not a single witness has been examined after 04.01.2020 and the status report makes it clear how difficult it has become to proceed with the trial of the case at present.

    Mr. Panigrahi, leanred Senior Advocate placed the observation made by the Hon'ble Supreme Court in the case of Ranjan Dwibedi -Vrs.- C.B.I. reported in A.I.R. 2012 S.C. 3217, wherein it is held as follows:-
"19.....However, unintentional and unavoidable delays or administrative factors over which prosecution has no control, such as, over- crowded court dockets, absence of the presiding officers, strike by the lawyers, delay by the superior forum in notifying the designated Judge, (in the present case only), the matter pending before the other forums, including High Courts and Supreme Courts and adjournment of the criminal trial at the instance of the accused, may be a good cause for the failure to complete the trial within a reasonable time. This is only illustrative and not exhaustive. Such delay or delays cannot be violative of accused's right to a speedy trial and needs to be excluded while deciding whether there is unreasonable and unexplained delay..."

    Keeping in view the observation made by the Hon'ble Supreme Court in the aforesaid case, if the order sheet of the learned trial Court is perused from 05.09.2019 onwards till the end of December 2019, it cannot be said that the delay which was caused was unavoidable or on account of any administrative factors over which the prosecution has no control. During the said period, the trial court was functioning normally and no adjournment was sought for from the side of the petitioner and therefore, the delay which has been caused by the trial Court even after the receipt of the order this Court on 22.08.2019 passed in BLAPL No.1053 of 2019, in my humble view, is unreasonable and unexplained. Of course after the last two witnesses i.e. P.W.24 and 25 were examined on 4.01.2020, the Presiding Officer was transferred on 10.01.2020 and the new Presiding Officer joined on 23.03.2020 and then the lock-down was imposed in the State since 23.03.2020 which was extended from time to time and during the said period, there was restricted functioning of the Subordinate Courts in the State as per the direction of this Court and no summons were issued to witnesses during the said period and now the letter dated 10.09.2020 of the learned trial Court makes it clear that the normal functioning of the Court has not been restored. Since the learned trial Judge has made it clear in the said letter that he shall make all endeavor to resume the trial by procuring the attendance of the witnesses in the Court, it is expected that the observation made by this Court while disposing of BLAPL No.1053 of 2019 to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of the witnesses shall also be kept in mind. All possible steps shall be taken to proceed with the trial on day-to-day basis. Since the learned trial Court is also dealing with other cases, a particular time slot should be fixed on each date and the mandate of section 309 of Cr.P.C. shall be adhered to. The trial Court shall take all possible steps to stop the dilly- dallying or shilly-shallying attitude adopted either from the side of the prosecution or accused and ensure that the constitutional right of speedy trial of the accused as guaranteed under Article 21 of the Constitution of India is not flouted causing mockery of the trial. It seems unnecessary lengthy cross examination has been made by different set of defence counsel to the witnesses to make it a gallery show, which needs to be regulated by the learned trial Court keeping in view the provisions under sections 146, 148, 150, 151, 152 and 165 of the Indian Evidence Act, 1872.[Para No.7]

27 September 2020

For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

"Delegatus non potest delegare"


    The wording of the first proviso is in the form of a protection given to a person sought to be removed and therefore will have to be interpreted strictly. This is what precisely been discussed and laid down by this Court in the case of Nimba Yadav Bhoi (supra). After referring to various decisions for interpreting the scope and mandate of Section 39 of the Act, this Court has made following observations in paragraph no.26.
"26] Considering the provisions contained in Section 39(1) of the said Act, and the law on the subject matter discussed hereinabove, it is apparent that the enquiry under Section 39 of the said Act has necessarily to be conducted by the Chief Executive Officer and none else. Such enquiry has to be preceded by necessary order directing the Chief Executive Officer to hold the enquiry and such order should be necessarily issued by the President of the Zilla Parishad. Pursuant to such appointment, the Chief Executive Officer himself has to hear the person against whom the enquiry is to be conducted and based on such enquiry, the Chief Executive Officer has to prepare a report and submit the same to the President of the Zilla Parishad. All these requirements are mandatory in nature and any failure in that regard on the part of the authorities, the proceedings under Section 39(1) of the said Act would be vitiated and any order passed on the basis of such proceedings which are vitiated would be rendered null and void. Reverting to the facts of the case, undisputedly, the order of the removal of the petitioner from the office of Sarpanch was not preceded by any enquiry by the Chief Executive Officer. There was no order of the President appointing the Chief Executive Officer to enquire into the mater."
 
For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

  Since no contrary authority having been cited before me, I find no reason and justification from taking any other view. When it is a matter of taking a drastic action against a Sarpanch and the provision requires inquiry to be conducted by a Chief Executive Officer to whom it is delegated by the Commissioner respondent no.2 he could not have overlooked the fact that instead of the Chief Executive Officer, the inquiry was conducted by a 3 member committee as per the directions of the Chief Executive Officer. It is trite that delegatus non potest delegare. The Chief Executive Officer being the delegate of the Commissioner cannot further delegate the powers of holding the inquiry. When the Legislature in its wisdom has expected a superior officer to undertake the inquiry, in all probabilities because a drastic action against an elected Sarpanch is to be taken, the inquiry ought to have been conducted by the Chief Executive Officer himself. That having not been done, the lapse in my considered view goes to the root of the validity of the entire process.[Para No.13]

26 September 2020

Delay in filing written statement can not be condoned if defendant found at laxity or gross negligence in filing the same

The Court below was expected to consider the application at Exhibit-32 on the basis of its contents, in the backdrop of the aforesaid facts indicating deliberate delay on the part of the respondent and by applying the position of law as laid down by the Hon'ble Supreme Court and this Court in the context of Order VIII Rule 1 of the Civil Procedure Code, particularly pertaining to the responsibility on the part of the defendant to act in a diligent manner and in any case to explain before the Court with cogent reasons for delay in filing the written statement. A perusal of the impugned order shows that no such effort was made by the Court below and in a cryptic and casual manner the application at Exhibit- 32 stood allowed.[Para No.13]

Delay in filing written statement can not be condoned if defendant found at laxity or gross negligence in filing the same
    The learned counsel for the petitioners is justified in relying upon the judgment of this Court in the case of Parasmal Daulatram Jain Vs. Rameshwar Rathanlal Karwa (supra), wherein this Court has reiterated the position of law concerning the approach to be adopted by the Courts while considering permission to the defendant to file written statement beyond the stipulated period of time. This Court placed reliance on the judgment of the Hon'ble Supreme Court, wherein it has been categorically stated that even if the relevant provisions of the Code of Civil Procedure in this regard can be said to be directory and not mandatory, the Courts cannot permit laxity or gross negligence on the part of the defendant to be condoned while granting permission to file written statement. In the facts of the present case, this Court is of the opinion that if the impugned order passed by the Court below is upheld, it would amount to giving premium to the respondent, not only for laxity and gross negligence, but to tactics adopted by her to somehow delay the proceedings in the suit for eviction filed by the petitioners. Although, it is expected that Courts decide disputes between parties by giving opportunity to the contesting party to place their respective versions on merits, there are situations where the Courts ought not to show misplaced indulgence to litigants like the respondent herein by adopting a liberal approach.[Para No.14]

25 September 2020

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law

Daughter in law threatening her in laws to dis-possess from their own property - mother in law filed suit against her alongwith an application for interim injunction u/s. 151 and Order 39 Rule 1 & 2 - plaintiff-mother in law contended that she is the owner of the suit property on the strength of registered sale deed - trial court refused to grant interim injunction observing that the house is a shared house under the Domestic Violence Act and the daughter in law cannot be forcibly evicted from the same as her belongings are still lying there - appeal by district court allowed - daughter in law prefered revision against order passed in appeal - revision dismissed.

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law
    In view of Krishan Kumar vs Navneet's case (supra) and Varinder Kaur vs Jitender Kumar's case (supra), the parents-in-law of the self-acquired property are the real owners and the daughter-in-law has no right to claim it as shared house and has no right of residence in the self-acquired property of parents-in-law. The daughter-in-law cannot be allowed to live in the house of parents-in-law against their wishes.

    While relying upon S.R. Batra and another vs Smt. Taruna Batra, 2007(1) RCR (Criminal) 403 in Suman vs Tulsi Ram 2015(1) RCR (Civil) 304, it was held that daughter-in-law does not have any right of protection under Section 17 of the Act for the purpose of living in the house belonging to parents-in-law which is exclusively owned by them.

While deciding bail application, it cannot be presumed that petitioner will flee justice or will influence the investigation/witnesses

Grant of bail cannot be thwarted merely by asserting that offence is grave.


Consequences of pre-trial detention are grave.

    In AIR 2019 SC 5272, titled P. Chidambaram v. Central Bureau of Investigation, CBI had opposed the bail plea on the grounds of:- (i) flight risk; (ii) tampering with evidence; and (iii) influencing witnesses. The first two contentions were rejected by the High Court. But bail was declined on the ground that possibility of influencing the witnesses in the ongoing investigation cannot be ruled out. Hon'ble Apex Court after considering (2001) 4 SCC 280, titled Prahlad Singh Bhati v. NCT, Delhi and another;( 2004) 7 SCC 528, titled Kalyan Chandra sarkar v.R ajesh Ranjan and another; (2005) 2 SCC 13, titled Jayendra Saraswathi Swamigal v. State of Tamil Nadu and (2005) 8 SCC 21, titled State of U.P. through CBI v.Amarmani Tripathi, observed as under:-

"26. As discussed earlier, insofar as the "flight risk" and "tampering with evidence" are concerned, the High Court held in favour of the appellant by holding that the appellant is not a "flight risk" i.e. "no possibility of his abscondence". The High Court rightly held that by issuing certain directions like "surrender of passport", "issuance of look out notice", "flight risk" can be secured. So far as "tampering with evidence" is concerned, the High Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence.

28. So far as the allegation of possibility of influencing the witnesses, the High Court referred to the arguments of the learned Solicitor General which is said to have been a part of a "sealed cover" that two material witnesses are alleged to have been approached not to disclose any information regarding the appellant and his son and the High Court observed that the possibility of influencing the witnesses by the appellant cannot be ruled out. The relevant portion of the impugned judgment of the High Court in para (72) reads as under:

"72. As argued by learned Solicitor General, (which is part of 'Sealed Cover', two material witnesses (accused) have been approached for not to disclose any information regarding the petitioner and his son (co-accused). This court cannot dispute the fact that petitioner has been a strong Finance Minister and Home Minister and presently, Member of Indian Parliament. He is respectable member of the Bar Association of Supreme Court of India. He has long standing in BAR as a Senior Advocate. He has deep root in the Indian Society and may be some connection in abroad. But, the fact that he will not influence the witnesses directly or indirectly, cannot be ruled out in view of above facts. Moreover, the investigation is at advance stage, therefore, this Court is not inclined to grant bail."

29. FIR was registered by the CBI on 15.05.2017. The appellant was granted interim protection on 31.05.2018 till 20.08.2019. Till the date, there has been no allegation regarding influencing of any witness by the appellant or his men directly or indirectly. In the number of remand applications, there was no whisper that any material witness has been approached not to disclose information about the appellant and his son. It appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made that "....the appellant is trying to influence the witnesses and if enlarged on bail, would further pressurize the witnesses....". CBI has no direct evidence against the appellant regarding the allegation of appellant directly or indirectly influencing the witnesses. As rightly contended by the learned Senior counsel for the appellant, no material particulars were produced before the High Court as to when and how those two material witnesses were approached. There are no details as to the form of approach of those two witnesses either SMS, email, letter or telephonic calls and the persons who have approached the material witnesses. Details are also not available as to when, where and how those witnesses were approached.

31. It is to be pointed out that the respondent - CBI has filed remand applications seeking remand of the appellant on various dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 and 19.09.2019 etc. In these applications, there were no allegations that the appellant was trying to influence the witnesses and that any material witnesses (accused) have been approached not to disclose information about the appellant and his son. In the absence of any contemporaneous materials, no weight could be attached to the allegation that the appellant has been influencing the witnesses by approaching the witnesses. The conclusion of the learned Single Judge "...that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly....." is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed.

32. The appellant is not a "flight risk" and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution. The charge sheet has been filed against the appellant and other co-accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail."[Para No.5.v.6]

24 September 2020

If charge sheet is not corroborating with the facts stated in the Motor Vehicle Accident Claim Petition, then the Tribunal should not considered the Claim Petition at all

The entire facts and circumstances raises a doubt in the mind of the Court. As far as the accident claims are concerned, the facts must be unambiguous. Even in case, there is a loss of memory or the claimant due to the injury, unable to provide the correct vehicle number, at least the Police Investigation should reveal the accident occurring time and the place specified as in the Claim Petition. If the charge sheet of the Police is not corroborating with the facts stated in the Claim Petition, then the Tribunal ought not to have considered the Claim Petition at all. In most of the cases, the facts stated in the FIR has been taken for consideration to establish the accident. But, in the present case, even after the investigation and filing of the charge sheet, Police officials deposed that the facts stated in the Claim Petition is mistaken facts. This being the Primafacie case established before the Tribunal, the Tribunal has not appreciated the contradiction in the Claim Petition as well as in the FIR and the Charge sheet filed by the Police. The deposition of Mr.Raja cannot be taken as a valid evidence, in view of the fact that he is an interested witness. However, the FIR and the Charge sheet cannot be neglected and it is to be given due weightage. If the basic facts regarding the accidents are not corroborating with the FIR as well as the charge sheet filed by the Police, then there is every reason to disbelieve the case of the respondent/claimant. This Court is of the considered opinion that many number of false claims are filed, processed and the Tribunals are also awarding compensation in a routine manner. Though the issues were dealt on several occasions by the Hon'ble High Court as well as by the Hon’ble Supreme Court, still such false claims are being noticed. Full Proof System in the matter of accident claims are necessary in order to avoid the bogus and fraudulent claims. This apart, unethical practices in settlement of claims are to be eradicated in order to protect the interest of the genuine accident victims. Undoubtedly, the accident victims are to be provided medical treatment immediately and 'just compensation' is to be granted without any lapse of time. The very purpose and object of the statute is to ensure speedy remedy to the accident victims. However, such things are not happening on account of various corrupt practices in the process of settling the compensation. Courts are also struggling to minimize such irregularities and illegalities. In the process of rectification, Court can make suggestions and issue directions to improve the system, so as to minimize the level of corruption and any other illegal activities in Motor Accident cases. This being the factum and the case of false claims are brought to the notice of the Courts, the Hon'ble High Court and the Hon’ble Supreme Court, on several occasions, issued directions, so as to ensure the genuine claimants receive compensation at the earlier point of time in accordance with law.[Para No.10]

If charge sheet is not corroborating with the facts stated in the Motor Vehicle Accident Claim Petition, then the Tribunal should not considered the Claim Petition at all

    Both the above provisions of the Motor Vehicles Act, 1988 unambiguously reveals that the Police officer, on receipt of information regarding any accident involving death or bodily injured to any person, has to register the F.I.R and conduct investigation and submit a report and such a report is to be communicated to the Claims Tribunal as well as the insurer and the copy should be made available to the owner of the vehicle also. The above statutory provisions is crystal clear that the duty of the Police officer to prepare the Accident Information Report and the detailed accident report and communicate the report to the Tribunal and Insurance company and thereafter, the Claims Tribunal under Section 166(4) of the Act shall treat the report of Accidents forwarded to the Tribunal as an application under Sub-Section (6) of Section 158 for compensation under the Motor Vehicles Act.[Para No.15]

19 September 2020

Lawyer has inherent authority to enter into a compromise on behalf and benefit of his client, unless there is express instruction by the client of limiting his authority to enter into a compromise

Having regard to the law laid down by the High Courts of this country, it can be clearly deduced that the various High Courts are of the unanimous view that even in cases where there is no express authorization to enter into a compromise under the inherent authority impliedly given to the counsel, he has power to enter into a compromise on behalf of his client for the benefit of the client, especially in absence of any express instruction by the client to his counsel, limiting his authority to enter into a compromise or give reason.[Para No.8]

    A bare perusal of the review petitions, filed by the Department of Mines and Geology, Government of Bihar, Patna, would show that there is no pleading to the effect that the learned Special P.P., Mines was expressly barred from giving his consent to orders being passed by the Hon'ble Patna High Court, keeping in mind the interest of the Department. It is a well settled law that the power to give consent or enter into a compromise in a particular given case is inherent in the position of an advocate in India and such power is deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client. The advocate is to conduct the cause of his client to the best of his skills & understanding. He must, in the interest of his client, be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimination.[Para No.11]

Lawyer has inherent authority to enter into a compromise on behalf of his client for the benefit of the client, unless there is express instruction by the client of limiting his authority to enter into a compromise
    It is equally a well settled law that a compromise settlement made in good faith by a counsel, when sanctioned by the Court in its order, is binding upon the client, as is also deducible from the various Judgments referred to herein above in paragraph No. 7 of this Judgment. Therefore, this Court is of the view that even in cases where there is no express authorization to enter into a compromise under the inherent authority impliedly given to the counsel, he has power to enter into a compromise on behalf of his client for the benefit of the client, especially in absence of any express instruction by the client to his counsel, limiting his authority to enter into a compromise or give reason. Consequently, it is held that the review petitioners-State authorities are bound by the orders passed by the Court on the basis of consent / compromise.[Para No.12]

17 September 2020

It is mandatory for the Court to issue an heirship certificate, if no objector comes forward within one month from the date of citation publication

Proceeding for heirship certificate can not be suspended till the decision of separate suit for partition filed by the objector


    This writ petition challenges the order dated 18.07.2018 passed by the Civil Judge, Junior Division, Ghatanji, whereby an application filed by the petitioner under Section 2 of the Bombay Regulation Act, 1827 for grant of heirship certificate has been kept suspended, till conclusion of civil suit pending between the parties.[Para No.2]

    The petitioner had filed the aforesaid application before the Court below claiming that she was the only wife of deceased Ramniklal Gandecha and that they had no children. On this basis, the petitioner prayed for grant of heirship certificate under the aforesaid provision to be declared the only heir of the said deceased Ramniklal Gandecha.[Para No.3]

    In the said proceeding, the respondent no.1, who was the sister of the said deceased Ramniklal Gandecha, filed an objection. In the said objection, it was pointed out that the said objector had filed a civil suit bearing Regular Civil Suit No. 7 of 2016 before the Civil Judge, Junior Division, Ghatanji, being a suit for partition and separate possession, wherein the petitioner, brother and sister of the said objector were defendants. It was contended by the said objector (respondent no.1) that if heirship certificate was granted to the petitioner, she would approach the competent authority for mutation of her name in the house property in which she was residing. It was contended that, according to the objector -respondent no.1, the said house property belonged to her father, in respect of which the aforesaid suit for partition and separate possession had been filed.[Para No.4]

    By the impugned order, the Court below has come to the conclusion that when the aforesaid suit for partition and separate possession had been already filed by the respondent no.1(objector), the application filed by the petitioner under Section 2 of the aforesaid Act would have to wait final adjudication of rights of parties in the aforesaid suit. On this basis, the proceedings in the application filed by the petitioner were suspended till the conclusion of the civil suit.[Para No.5]

    A perusal of Section 2 of the aforesaid Act and the application filed by the petitioner thereunder shows that the only prayer made by the petitioner is for grant of heirship certificate to declare that she is the only heir of the deceased Ramniklal Gandecha. A perusal of the objection raised on behalf of respondent no.1 shows that the said respondent has admitted the fact that the petitioner was the only wife of the deceased Ramniklal Gandecha and that they had no children. In view of the aforesaid facts, it would be evident that the claim made in the application filed by the petitioner under the provisions of the said Act, even if granted, would not result in recognition of any rights of the petitioner in respect of the said house property and that an application for mutation before the competent authority, if preferred by the petitioner, would be decided as per law after issuance of notice by the competent authority. Grant of heirship certificate would not ipso facto lead to recognition or crystallization of any rights of the petitioner in the house in question. At best, it would assist the petitioner in claiming that she was entitled to the rights that the deceased Ramniklal Gandecha was entitled, as his only heir.[Para No.6]

It is mandatory for the Court to issue an heirship certificate, if no objector comes forward within one month from the date of citation publication
    Therefore, apprehension expressed by the objector before the Court in the present proceedings was misconceived. The Court below also erred in suspending the proceeding in the present case only on the ground that the aforesaid suit filed by the respondent no.1 was pending before the said Court. The issues raised in the said suit, filed for partition and separate possession, would certainly be decided on merits by the Court and mere pendency of the aforesaid suit ought not to result in suspension of proceedings in the present case. This is fortified by a decision referred to by the learned counsel appearing for the petitioner in the case of Ganpati Vinayak Achwal - 2015(2) All MR 285 wherein this Court held as follows:

16 September 2020

Mamalatdar's decision in respect of existence or use of customary way does not operate as res judicata to a suit in civil court on the same issue

However, simultaneously, it is important to note that admittedly, may be during pendency of the proceeding before the lower authorities, the petitioners have initiated a substantive civil suit against the respondent Nos. 1 and 2 in the form of Regular Civil Suit No.57/2018 in respect of the self same dispute touching existence of the disputed way. It is important to note that in view of the scheme of the Act, the decision of Mamlatdar is not conclusive as can be seen from the provisions of Section 22 and particularly the Second Proviso which reads thus:
22. Subject to the provisions of section 23, sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment of the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by a competent Civil Court :
Mamalatar's decision in respect of existence or use of customary way does not operate as res judicata to a suit in civil court on the same issue
Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar's decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use:
Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of section 21, shall not be held to be conclusive.[P
ara No.16]

15 September 2020

Bail cannot be withheld merely as a punishment

When accused surrendered before Sessions court, the court has powers u/s.439 of Cr.P.C. to release accused on personal bond for a short period pending the disposal of a bail application

    Bail is the antithesis of custody. In the absence of any riders or restrictions under S. 439 CrPC, any person accused of a non-bailable offence, under any penal law, including the violations under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, can apply under section 439 CrPC, offering to surrender and simultaneously seeking interim bail. On receipt of such application, the Court is to satisfy that the applicant stands arraigned as an accused in a FIR disclosing Non-Bailable offences, if all these parameters are complete, then the Courts are under an obligation to accept surrender. Since custody is a sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after this deemed custody. All such pleas fall under the scope of S. 439 CrPC itself, and there is no need to invoke S. 482 CrPC. After that, granting or refusing interim bail is a Judicial function.[Para No.63]

Bail cannot be withheld merely as a punishment
   While granting interim bail, the rights of the victims, their families, the oppressed communities, the existence of reasonable grounds for believing that a person has committed an offence punishable with death or transportation for life, the gravity and heinous nature of the crime, the criminal history of the accused, as well as of the possibility of false implication, should always be gone into. Bail cannot be withheld merely as a punishment. One of the most significant considerations is the accused's conduct, which was not to abscond but voluntarily to surrender and submit herself to the majesty of Justice. Each case will have to be decided on the cumulative effect of all events put before the Court. However, there would be no justification in entering into a roving inquiry on either party's allegations[Para No.64]

    The Court must decide the prayer for interim bail on that day itself when it takes the accused in its custody. Such interim bail can extend till the bail application's final disposal, on the police file's production, or the status report. However, powers to grant interim bail should be exercised in a judicial and not in an arbitrary manner, and if given, then for the purpose of interim bail, personal bonds alone would suffice. If the allegations are serious, keeping in view the object of the SCSTPOA and the purpose for which this stringent provision in SCSTPOA was enacted, then indeed, such interim protection either be rejected or, if granted, can always be withdrawn on the next hearings.[Para no.66]

13 September 2020

A stranger to the suit cannot be impleaded under Order 1 Rule 10 of C.P.C. in a suit for specific performance merely to avoid multiplicity of the suits

Doctrine of lis pendency does not annul the conveyance or the transfer made during the pendency of suit.


    Liquidation proceedings are also fixed before the Company Law Board. For impleading a party in a suit for specific performance, two tests are to be satisfied. Firstly, there must be a right to some relief against the plaintiff in respect of suit property. Secondly, that in the absence of the petitioner/proposed defendant, no effective adjudication can be done by the trial Court.In a suit for specific performance, necessary party is that person in whose absence no decree can be passed. Proper party is that person whose presence before the Court would be necessary in order to enable the Court to decide and adjudicate the lis in an effective manner. A person stranger to the agreement to sell cannot be termed as necessary and appropriate party as collateral matters cannot be adjudicated in a suit for specific performance. By allowing such a course, the suit itself will be converted into a complicated suit for title.[Para No.18]

    The scope of a suit for specific performance cannot permit third party claiming to be joint owner in the property in question. A stranger to the agreement/contract making a claim adverse to the title of the defendant by claiming right of co- sharership in the suit property cannot be termed to be necessary party, nor proper party for adjudication of the case on merits. In this context reference can be made to Kasturi vs. Iyyamperumal & Ors., 2005(2) R.C.R. (Civil) 691; Anil Kumar Singh vs. Shivnath Mishra @ Gadasa Guru, 1995(1) R.R.R. 660; Krishan Lal vs. Tek Chand, 1986(2) PLR 616 and Om Parkash and another vs. Rajni Gupta and another, 2008(1) R.C.R. (Civil) 400.[Para No.19]

     The ratio of Kasturi's case (supra) has been reiterated by the Hon'ble Apex Court in Civil Appeal Nos.5522-5523 of 2019 titled Gurmit Singh Bhatia vs. Kiran Kant Robinson and others decided on 17.07.2019. The plaintiff is a dominus litis and he cannot be compelled to contest the suit against a person with whom, he does not wish to contest. In Kasturi's case (supra), the Court held that the question of jurisdiction of Court to invoke Order 1 Rule 10 CPC to add a party, who is not made a party in the suit by the plaintiff, shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. Both the tests which have been discussed in the preceding paras are to be satisfied.[Para No.20]

A stranger to the suit cannot be impleaded under Order 1 Rule 10 of C.P.C. in a suit for specific performance merely to avoid multiplicity of the suits
    The party claiming independent title and possession adverse to the title of the vendor and not on the basis of agreement/contract, is not proper party and if said party is impleaded the scope of the suit for specific performance shall be enlarged and it will become a suit for title and it will involve intricated question of title which is not permissible in law. A stranger to the suit cannot be added/impleaded in a suit for specific performance merely in order to find out, who is in possession of the agreed property or to avoid multiplicity of the suits. A stranger to agreement cannot be impleaded as a party so as to convert a suit of one character into a suit of different character. It is only an assignee by sale in a case of specific performance who can be impleaded as party defendant. Section 19(b) of the Specific Relief Act enables the assignee by sale in a suit for specific performance to be impleaded as party. The aforesaid exception has been carved out in view of nature of suit being a specific performance, wherein the assignee by sale can protect his title and join the proceedings in view of law laid down in Thomson Press (India) Ltd.'s case (supra). It is a settled principle of law that doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties, but on those who derive title pendente lite. This provision does not intend to annul the conveyance or the transfer otherwise to render it subservient to the right of a party to a litigation.[Para No.21]

12 September 2020

Neither District Administration nor Police have any powers to seize immovable property for violation of lockdown orders

The present writ petition has been filed for quashing the order as contained in memo no.705/GO dated 26th April, 2020 passed by the Sub Divisional Magistrate, Dhalbhum, Jamshedpur- respondent no.2 with a further direction to the respondents to remove the seal from "The Alcor Hotel", situated at Holding No.4, Ramdas Bhatta, opposite Indian Oil Petrol Pump, Bistupur, Jamshedpur, District East Singhbhum (hereinafter to be referred as 'the said premises')[Para No.2]

    The factual background of the case as stated in the writ petition is that the petitioner owns the Hotel Alcor, which provides facilities such as restaurants, bar, spa etc. On 25th April, 2020, a first information report being Bistupur P.S. Case no.87 of 2020 was registered under Sections 188, 269 & 270 of the Indian Penal Code; Section 54 of the Disaster Management Act, 2005; and Section 3 of the Epidemic Diseases Act, 1897, alleging that during the lockdown period, a raid was conducted on 25th April, 2020 in the Hotel Alcor wherein it was found that the spa was opened and few people including two girls were present in the conference hall, adjoining the spa. Seeing the raiding party, some persons fled away, however, three persons were apprehended on spot. Thereafter, the said premises was sealed on 26th April, 2020 by the Special Officer, Jamshedpur Notified Area Committee and the Executive Magistrate-cum-Incident Commander, East Singhbhum, Jamshedpur in terms with the office order as contained in memo no.705/GO dated 26th April, 2020 passed by the respondent no.2. Another first information report, being Bistupur P.S. Case no.88 of 2020 was registered under Sections 3, 4, 5 & 6 of the Immoral Traffic (Prevention) Act, 1956 against one of the Directors of the petitioner- Company, namely, Rajiv Singh Dugal and other accused persons on 27th April, 2020, alleging therein that one Sharad Poddar had kept a lady, namely, XXXXXXXXXX in the said hotel for last one month and had been establishing physical relationship with her since then. The petitioner vide letter dated 7th May, 2020 requested the Deputy Commissioner, East Singhbhum, Jamshedpur- respondent no.1 to unseal the hotel premises, so that day to day business of the petitioner-Company and firms having their registered offices located at Alcor Hotel Premises could function in a regular manner. The copies of the said letters were also sent to other authorities, however, no action in this regard was taken. The petitioner also served a reminder vide letter dated 15th May, 2020 to the respondent no.1, however, the same was also not responded. Hence the present writ petition.[Para No.3]

    To appreciate the rival submissions of learned counsel for the parties, it would be relevant to refer the judgment of the Hon'ble Supreme Court rendered in the case of Nevada Properties Private Limited through its Directors vs. state of Maharashtra & Anr., reported in 2019 SCC Online SC 1247. The relevant paragraphs of the said judgment are quoted as under:-
"20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word 'seize' would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code. The expression 'circumstances which create suspicion of the commission of any offence' in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not 'any property' is required to be seized. The word 'suspicion' is a weaker and a broader expression than 'reasonable belief' or 'satisfaction'. The police officer is an investigator and not an adjudicator or a decision maker.This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to 'seize' immovable property on a mere 'suspicion of the commission of any offence', it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side (See Binod Kumar v. State of Bihar (2014)10SCC663). Thus, it will not be proper to hold that Section 102 of the Code empowers a police officer to seize immovable property, land, plots, residential houses, streets or similar properties. Given the nature of criminal litigation, such seizure of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate investigation to collect evidence/material to be produced during inquiry and trial. As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the Criminal Court during trial. This, however, would not bar or prohibit the police officer from seizing documents/papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court.
21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Section 102 of the Code to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."[Para No.12]

    The Hon'ble Supreme court in the aforesaid judgment has held that Section 102 Cr.P.C. postulates seizure of the property. However, an immovable property cannot, in its direct sense, be seized, though documents of title etc. relating to immovable properties can be seized, taken into custody and produced. Language of Section 102 Cr.P.C. does not support the interpretation that the police officer has the power to dispossess a person who is in occupation, to take possession of an immovable property in order to seize it.[Para No.13]

Neither District Administration nor Police have any powers to seize immovable property for violation of lockdown orders
    It is, thus, well settled that the power of sealing of property carries civil consequences. A person can be deprived of the property only by following due procedure in accordance with law. No person shall be deprived of the right of property, except by the procedure prescribed under law.[Para No.16]

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