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  Arbitration Act, 1940,  S. 20 - Partnership Act,  S. 69(3)- Disputes arose between the partners of unregistered firm - Partnership Deed provided for resolution of disputes arising out of the partnership between the parties by an Arbitrator – Application filed under section 20 of the Arbitration Act, 1940, that an Arbitrator be appointed in terms of Clause 11 of the Partnership Deed for deciding the disputes, which have arisen between the parties relating to the partnership -  Objection raised by defendant that since the partnership in question on which the application was founded was an "unregistered partnership", therefore, in the light of the bar contained Under Section 69(3) of the Partnership Act application be dismissed – Objections overruled and application filed by the Plaintiff allowed -  Order upheld by High Court – Matter remanded to be decided in terms of Krishna Motor Service by its Partners v. H.B. Vittala Kamath, 1996 (10) SCC 88 - Constitution of India, Article 227. 2019 SCeJ 547

Criminal Procedure Code , 1973,  S. 482 - Negotiable Instruments Act, 1881,  S. 138 - The question as to whether there was a dispute as contemplated in clause 4 of the Agreement to Sell which obviated the obligation of the purchaser to honor the cheque which was furnished in pursuance of the agreement to sell to the vendor, cannot be the subject matter of a proceeding under Section 482 and is a matter to be determined on the basis of the evidence which may be adduced at the trial. 2019 SCeJ 552

Motor Vehicles Act, 1988 -  In the case of a motor accident where there is death of a person, who is a bachelor, it is the age of the deceased which has to be taken into account and not the age of the dependents would be taken into account for calculating the multiplier. 2019 SCeJ 543

Motor Vehicles Act, 1988 – Compensation - The judicial pronouncements of this Court have endeavoured to devise a standard formula, so far as possible, in respect of the calculation of the amount of compensation qua various components -  The amount of compensation determined is to be paid to the claimants who are dependents in case of a death of a person based on what the deceased would have contributed to their support - The amount thus received by the dependents in turn becomes a part of the estate as they may live longer or may be younger than the age limits taken into account for calculation of a multiplier to be applied in such a situation - The focus for determination of such claim is the deceased and what would be his contribution towards the dependents would he to be alive, for the benefits of the dependents. 2019 SCeJ 543

Negotiable Instruments Act, 1881,  S. 138 - Cheques were issued under and in pursuance of the agreement to sell -  Though it is well settled that an agreement to sell does not create any interest in immoveable property, it nonetheless constitutes a legally enforceable contract between the parties to it - A payment which is made in pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liability for the purposes of Section 138 -  Criminal Procedure Code , 1973,  S. 482.  Held,We find ourselves unable to accept the finding of the learned Single Judge of the High Court that the cheques were not issued for creating any liability or debt, but ‘only’ for the payment of balance consideration and that in consequence, there was no legally enforceable debt or other liability. Moreover, acting on the General Power of Attorney, the respondent entered into a subsequent transaction on 3 August, 2013. Evidently that transaction was after the legal notice dated 21 June, 2013. Recourse to the jurisdiction of the High Court under Section 482 was a clear abuse of process. 2019 SCeJ 552

 

Tenancy  - Suit for eviction and recovery of damages and mesne profit decreed  -  Stay granted in favour of the Appellant-tenant on the ground of non-compliance of the conditional order passed by the High Court vacated for non compliance  -  Amount ordered to be deposited as per order of Apex court – Stay restored. 2019 SCeJ 550

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Fair trial  -  Defendant’s right to file the written statement was closed by the Senior Civil Judge - Contesting parties to the suit must get fair opportunity to contest the suit on merits in accordance with law -  A decision rendered by the Courts in an unsatisfactory conducting of the trial of the suit is not legally sustainable - It is regardless of the fact that in whose favour the decision in the trial may go – Matter remanded -  Defendant allowed to file written statement. (2019-2)194 PLR 280 (S.C.)

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SUPREME COURT

*WHAT IS AN ACCIDENT?*

 

Accident – Where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident - However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen. *2019 SCeJournal 457*

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Insurance - Accident –  Disease – Death due to malaria -  - It was not a peril insured against in the policy of accident insurance.    2019 SCeJournal 457

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Guardians & Wards Act, 1890 

Where the children were foreign citizens .

a. Custody of Minor Child – Foreign Courts decree

b. Divorce and custody – Child pays

c. application for custody of minor children filed before the Family Court, Hyderabad is rightly rejected

d. expression “best interest of child” 

e. The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children 

f. Younger Tender Year Doctrine 

g. Role of parents  

 


‘Negligence’ and the ‘duty to take reasonable care’ together with the ‘rule of strict liability’. Click Here


Code of Civil Procedure, 1908 , Order 9 Rule 13, Order 9 Rule 6 (a) and Order 17 Rules 2 and 3 - Application for setting aside of the preliminary decree where the defendant was proceeded exparte at the stage of defendants evidence  -  Such decree was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13.   2019 SCeJournal 398


 

Transfer of Property Act, 1882 – Property received by Will is to be considered as a self-acquired property . 2019 SCeJ 279

Transfer of Property Act, 1882, S.122 - Gift deed - Validity of -  If the gift is evidenced by consideration, same cannot be valid one within the meaning of Section 122 of the T.P. Act. 2019 SCeJ 279


Consumer - Non delivery by builder - Guidelines for payment. Click here 2019 SCeJ 273


Prospective overruling. Prospective declaration of law  - Saving actions already taken . Click here


Contempt of court - The contempt jurisdiction cannot be invoked on the basis of impressions. 2019 SCeJ 51. CLICK HERE

Court – Procedure - Regular Second Appeal - High Court did not discuss nor dealt with any issues arising in the case nor dealt with any submissions urged by the appellant. Matter remanded. 2019 SCeJ 63. Click here

Archived updates

 

 

 

Civil Procedure Code, 1908 (V of 1908) Order 9, Rule 13 – Application for setting aside the judgment and decree had been allowed – How the publication was effected in Danik Chetna, Bhiwani, when address of the defendant No.1 was of Himachal Pradesh - It itself was a clincher for the Court below not to accept the publication and proceed the defendant as ex parte - The trial Court also failed to notice the aforementioned facts – Order upheld. (2019-1) Punjab law Reporter (P&H)

 

CPC – Suit for declaring the General Power of Attorney, Sale Deed, executed by defendant in favour of his son (defendant) as fraudulent and not binding – It appears that the registered deed of power of attorney and the sale deed executed on the strength of power of attorney are under challenge – Application for impleadment by purchaser of property – Liable to be rejected.. (2019-1) Punjab law Reporter 51 (Pat.)

 

CPC (V of 1908) O. 6, R. 17 – Application for Amendment of plaint moved at the belated stage for amending the plaint by adding a relief about readiness and willingness before Lower Appellate Court – Plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant - It was too late in the day for the plaintiff to fill up such a lacuna in his case only at the appellate stage - In other words, the late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility - Suit for specific performance  - Specific relief Act, 1963 S. 16.  2019 SCeJ 236

 

CPC (V of 1908) S. 100, S. 101 - CPC (V of 1908) S. 100(5) Proviso - It remains fundamental, as per Section 101 CPC, that no second appeal would lie except on the ground mentioned in Section 100 - As per Section 100 CPC, the appeal would lie to the High Court from the decree passed in appeal by any Court subordinate only if the High Court is satisfied that the case involves a substantial question of law; such question is required to be stated in the Memorandum of Appeal; the High Court is required to formulate the question on being satisfied that the same is involved in the case; the appeal is to be heard on the question so formulated; and at the time of hearing, the respondent could urge that the case does not involve such a question - Proviso to sub-section (5) of Section 100 CPC makes it clear that the Court could hear the appeal on any other substantial question of law not formulated by it, but only after recording the reasons that the case involves such a question - Proviso to sub-section (5) of Section 100 CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier -  The said proviso, by its very nature, could come into operation only in exceptional cases and for strong and convincing reasons, to be specifically recorded by the High Court - There being no such strong and convincing reason in the present case to formulate and hear the second appeal on any other question of law, the High Court cannot be faulted in rejecting the contentions urged on behalf of the plaintiff-appellant in this regard. 2019 SCeJ 236

 

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CPC Order  2 Rule  2 - Bar to subsequent suit - Earlier suit for declaration and permanent injunction - Subsequent suit for specific performance of contract on same cause of action -  It is mandatory that to sustain a plea under Order 2, Rule 2 of the Code of Civil Procedure, the defendant is obliged under the law to prove the plaint and the proof has to be as per the law of evidence -  Defendants have filed a photo copy of the plaint in the earlier suit  - Filing of the plaint, means, leading of plaint as evidence in support of plea of non-maintainability of suit under Order 2, Rule 2 CPC was imperative -  As the photo copy of the plaint was not admissible in evidence, it cannot be said that the legal requirement of filing the plaint of the earlier suit was even substantially complied with - Certified copy of the judgment placed on record, of the earlier case referred to the pleadings but that cannot be said to be complete plaint being on record before the Court to examine whether the second suit ought to be held to be not maintainable under Order 2, Rule 2 CPC -  Plea based on provisions contained in Order 2, Rule 2, CPC is a technical bar which has to be established satisfactorily and cannot be presumed merely on the basis of inferential. (2019-1) Punjab Law Reporter 25 (Chatt.)

 

CPC Order 18 Rule 17 – Last Opportunity given subject to payment of costs to cross-examine witness – Sought adjournment that counsel was busy in another court 40 KM away - However the learned Judge of the trial Court directed the counsel to file an application in this behalf and subsequently an application under Order 17 Rule 1 was filed and the learned trial Judge by referring to the proviso (c) of Rule 2 of Order 17 has rejected the aforesaid application holding that the aforesaid rule does not provide such reason that the counsel is busy in another Court and thus the right of the plaintiff to cross examine the defendants' witnesses has been closed – The reason for adjournment as advanced by the counsel for the plaintiffs cannot be said to be unreasonable specially looking to the fact that the defendants themselves have sought two adjournments to keep their witnesses present. (2019-1) Punjab Law Reporter 49  (M.P.)

 

Evidence – Secondary Evidence – There is admission of the agreement to sell, but it is yet to be proved as to whether it is pertained to the subject matter of the suit property or not - In such circumstances, the Court below should have allowed the secondary evidence subject to the existence and loss - Until and unless, a party seeking indulgence of the Court for placing on record the secondary evidence, who is not able to prove the existence and loss, cannot be permitted to examine the same as mere exhibition of the documents does not dispense with its proof - The defendants would have a right to cross-examine and lead evidence, in rebuttal to what the plaintiff intends to lead in the application for secondary evidence qua existence and loss. (2019-1) Punjab law Reporter (P&H)

 

Judicial restraint and general observations - High Court appears to have been carried away by the moral element involved in the breach of promise and made certain observations -  Being a policy consideration, such suggestions need to be restricted -  The observations of the High Court were not only unnecessary for the adjudication of this matter, but the same could have been understood as casting some kind of aspersions on the accused -  This clearly reflected a loaded dice situation against the appellant  - In our considered opinion, the High Court should have maintained judicial restraint and desisted from making such general observations at this stage of the criminal proceeding, as they may have had a bearing on the adjudication of the trial -  Cr.P.C., S. 482.  2019 SCeJ 246

 

Revenue records  - Entries made in the revenue records -  Mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title -  It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (2019-1) Punjab law Reporter 823(S.C.)

 

Specific Relief Act, 1963, S. 16  (amendment by Act No. 18 of 2018) - The expression “who fails to aver and prove” is substituted by the expression “who fails to prove” and the expression “must aver” stands substituted by the expression “must prove” but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favour to the person who fails to prove that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms of which, the performance has been prevented or waived by the other party - Suit for specific performance. Held,Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so.  Suit filed in 1979,  as per the law applicable at the relevant time, it was incumbent for the plaintiff to take the specific averment to that effect in the plaint. It was made clear by the Apex  Court in Syed Dastagir v. T.R.Gopalakrishna Setty (1999)6 SCC 337 and Aniglase Yohannan v. Ramlatha and Ors. (2005)7 SCC 534, that such requirement of taking the necessary averment was not a matter of form and no specific phraseology or language was required to take such a plea. However, and even when mechanical reproduction of the words of statue was not insisted upon, the requirement of such pleading being available in the plaint was neither waived nor even whittled down. In A. Kanthamani v. Nasreen Ahmed (2017)4 SCC 654, Court pointed out that the requirement analogous to that contained in Section 16(c) of the Specific Relief Act, 1963 was read in its forerunner i.e., the Specific Relief Act, 1877 even without specific provision to that effect. the Court said, the plaint which seeks the relief of specific performance of the agreement/contract must contain all requirements of Section 16 (c) read with requirements contained in Forms 47 and 48 of Appendix ‘A’ CPC.  2019 SCeJ 236

 

Specific Relief Act, 1963, S. 16 – In a suit for specific performance, the Court would be, and had always been, looking at the substance of the matter if the plaintiff, by his conduct, has established that he is unquestionably standing with the contract and is not wanting in preparedness as also willingness to perform everything required of him before he could be granted a relief whereby, the performance of other part of the contract could be enjoined upon the defendant - The averment and proof on readiness and willingness to perform his part of the contract has been the threshold requirement for a plaintiff who seeks the relief of specific performance -  The principle that the requirement of such averment had not been a matter of form, applied equally to the proposition for amendment at the late stage whereby, the plaintiff only attempted to somehow improve upon the form of the plaint and insert only the phraseology of his readiness and willingness -  In the present case, the plaintiff-appellant had failed to aver and prove his readiness and willingness to perform his part of the contract - Thereafter, the plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant  - In the facts it was too late in the day for the plaintiff to fill up such a lacuna in his case only at the appellate stage -  In other words, the late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility in the present case - Suit for specific performance  - CPC (V of 1908) O. 6, R. 17. 2019 SCeJ 236

 

Specific Relief Act, 1963, S. 16 - Specific performance of the agreement - Continuous readiness and willingness to perform his part of the essential terms of the contract - There is not even a remote suggestion in the plaint averments that the plaintiff had performed or has always been ready and willing to perform his part of the contract -  Even in the plaintiff’s testimony, it is difficult to find a categorical assertion that he had performed or has always been ready and willing to perform his part of the contract - The testimony was essentially directed towards the existence and validity of the alleged agreement and the surrounding dealings of the parties; but lacking in those material assertions on readiness and willingness on his part, which remain essential for grant of the relief of the specific performance - Plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of the contract - The suit was bound to fail on this ground alone. Held,When the pleadings in the present case are examined with reference to the principle aforesaid, it is but apparent that in the plaint, the plaintiff referred to the agreement in question whereby, the defendant had allegedly agreed to sell the house in question to him for a sale consideration of Rs. 30,000/- and averred that the defendant received a sum of Rs. 15,000/- from him. The plaintiff stated that the agreement was executed on 16/17.04.1975. Thereafter, the plaintiff straight away referred to the fact that subsequent to the execution of agreement, the Urban Land (Ceiling and Regulation) Act, 1976 was promulgated; and Section 27 thereof prohibited transfer of property without prior permission of the Competent Authority. The plaintiff further averred that he served notice dated 06.05.1979 on the defendant asking him to seek permission and to execute the sale deed; that the notice was personally served on the defendant on 17.05.1979; and that the defendant in his reply dated 06.07.1979, feigned ignorance about the agreement. The plaintiff further averred that the defendant was bound to execute the sale deed of the house after seeking necessary permission and for the defendant having failed to do so, the suit was being filed. There is not even a remote suggestion in the plaint averments that the plaintiff had performed or has always been ready and willing to perform his part of the contract. Even in the plaintiff’s testimony, it is difficult to find a categorical assertion that he had performed or has always been ready and willing to perform his part of the contract. The testimony of the plaintiff is essentially directed towards the existence and validity of the alleged agreement and the surrounding dealings of the parties; but is lacking in those material assertions on readiness and willingness on his part, which remain essential for grant of the relief of the specific performance. 2019 SCeJ 236

 

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Coparcenary Property – Every property in the hands of a holder is presumed to be his self-acquired property unless proved otherwise. (2019-1)193 THE PUNJAB LAW REPORTER 625


Will – Registration of the Will is not mandatory - Attestation of the Will by the testator and 2 attesting witnesses is separate than the act of getting the same registered - There can be a gap of some days in between execution and attestation of Will by the attesting witnesses and registration - Registration of Will is only optional.        (2019-1) PLR 639                   


NEGOTIABLE INSTRUMENTS ACT

A. Onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 2019 SCeJournal 222

b. Cheque filled in later - It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer 2019 SCeJournal 222

c. Blank signed cheque  - If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. 2019 SCeJournal 222

d. Fiduciary relationship  - The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act. 2019 SCeJournal 222

e. Against a Loan - Loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference.2019 SCeJournal 222

f. Second or successive default in payment of the cheque amount is not impermissible simply because no statutory notice had been issued after the first default and no proceeding for prosecution had been initiated . 2019 SCeJournal 222

 

g. Unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability - Presumption is a rebuttable presumption . 2019 SCeJournal 222

 

Negotiable Instruments Act, 1881, S. 138 - Holder of the Cheque can make successive presentation of the cheque and institute the criminal complaint based on the second or successive dishonour of the cheque on its presentation  - Cheques were presented twice and notices were issued on 31.08.2009 and 25.01.2010 and complaint filed on the basis of the second notice - Complaint filed based on the second statutory notice is not barred. 2019 SCeJ 115 

 

Constitution of India, Article 226, 227  - No writ petition can be entertained for issuance of any writ against any private individual in respect of any private property dispute .2019 SCeJ 187.  Click here

 

 

CPC 1908, (V of 1908) S. 100 - Substantial question of law  - Specific performance  - Interpretation of any terms and conditions of a document/agreement constitutes a substantial question of law within the meaning of Section 100 of the Code. 2019 SCeJournal 191. Click here

 

Revenue records  - Entries made in the revenue records -  Mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title -  It only enables the person in whose favour mutation is ordered to pay the land revenue in question. 2019 SCeJournal 194. Click here

 

Insurance  - Insured Declared Value  “IDV” –   Depreciation – Starts from the date of insurance  based on Sum Insured -  Can depreciation be deducted in case of a total loss claim ? 2019 SCeJ 178. Click Here. 

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Constitution of India, Article 32 - Contractual personal rights -  Writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance.2019 SCeJ 142. Click here

 

Evidence Act, 1872, Section 35  - Public document  - Birth register, Government Almanac -   An entry in any public or other official book. 2019 SCeJournal 132Click here.

 

CPC , Order 5 Rule 17 - Process Server reported refusal  on summon but did not obtain signatures of any witness nor made any attempt to get the name and address of any person as a witness or taken any steps to associate a witness before affixing the summons on the house   -  Exparte ejectment order set aside. (2019-1) PUNJAB LAW REPORTER 385