Law as it is happens.....

Todays Update


Employees Compensation Act (8 of 1923), S.4-  Compensation claim - Deceased, driver of Public Transport Bus, fell off the roof of the bus accidentally and died - duty of the deceased got over at 7:30 pm and he is stated to have fallen off the bus after duty hours at 8:30 pm. – Deceased while coming down the roof of the bus of which he was a driver, after eating his meal fell accidentally - Deceased present at bus terminal and remained with bus even after arrival of bus at destination, not by choice, but by compulsion and necessity of duty as he was travel back in the same bus after a break – There was a clear nexus between the accident and the employment to apply the doctrine of "notional extension" of the employment - The re-quirement of the deceased to stay with the bus was integrally connected with the efficiency of the service to be provided to the public by respondent No.1 and the deceased was not present at the bus terminal with the bus in his nature as a mem-ber of the public by choice, we see no reason why the doctrine of notional extension of the employment will not be applicable - Death of deceased occurred during course of and arising out of employment – entitled to claim - Doctrine of 'notional extension' of employment - Applicability. 2019 SCeJournal 373


Industrial Disputes Act (14 of 1947), S.38,  S.17A- West Bengal Industrial Disputes Rules (1958), R.20B(5),  R.21- Ex-parte award - Application filed by the company for recall of the ex parte order was after 30 days of publication - Neither notice under R. 21,  nor written statement filed by workman was served upon Employer-Company before ex-parte hearing - Violation of R. 20-B(5) and principles of natural justice - Can be ground for setting aside ex-parte award - Rejection of application by Tribunal on ground of becoming functus officio since application was filed after 30 days from publication of award was not justified -  Constitution of India, Art.14. 2019 PLR SCeJournal 373


Update 27/2/19

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

 

Update 26/2/19

Consumer - Non delivery by builder - Guidelines for payment

Click here 2019 SCeJ 273

 

SUPREME COURT OF INDIA


 

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.)

 

Cr.P.C., S. 456 – Section  456 (1)  clearly indicates that the Trial Court can pass an order for restoration of the possession of the property to the person who was forcibly dispossessed -   The proviso no doubt lays down that no such order shall be passed after one month of the date of conviction - Limitation of 30 days would not apply. It would apply only if the Trial Court had not passed any order in respect of the case property while convicting the accused – Section 456(2) provides that if the Court trying the offence has not made such an order, the Court of appeal, confirmation or revision can also make such an order while disposing of the proceedings pending before it -   No limitation has been provided for the higher courts to make such order. 2019 SCeJ 233

 

Cr.P.C., Section 482 - Quashing of the charges - Exercise needs to be undertaken by the High Court in exceptional cases - Framing of charges being initial stages in the trial process, the court therein cannot base the decision of quashing the charge on the basis of the quality or quantity of evidence rather the enquiry must be limited to a prima facie examination. 2019 SCeJ 246

 

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 Cr.P.C., Section 482  - Quashing - Allegations of civil nature  - Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature - The correctness or otherwise of the allegations has to be decided only in the Trial -  At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused - If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted -  Indian Penal Code, 1860, Section 420, 465, 467, 468, 471 read with Section 34.          2019 SCeJ 230

 

Cr.P.C., Section 482  - Quashing - Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive -  If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same - It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal - If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere - Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold.    2019 SCeJ 230

 

Criminal trial  - Framing of charges -  It is the duty of the court to apply its judicial mind to the material placed before it and to come to a clear conclusion that a prima facie case has been made out against the accused -  An order for framing of charges is of serious concern to the accused as it affects his liberty substantially -  Courts must therefore be cautious that their decision at this stage causes no irreparable harm to the accused. 2019 SCeJ 246

 

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)

 

IPC , S. 405 read with 406 -  Loan transaction -  A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment - Dispute arises out of a loan transaction between the parties – Parties knew each other before lending the loan - A summary civil suit for recovery was still pending adjudication - Law clearly recognizes a difference between simple payment/investment of money and entrustment of money or property -  There is nothing in the complaint that any property was entrusted to the appellant at all which he dishonestly converted for his own use so as to satisfy the ingredients of Section 405 punishable under Section 406 of IPC - Magistrate committed a serious error in issuing process against the appellants for the said offence   - Cr.P.C., Section 482. 2019 SCeJ 246

 

IPC, S. 415, 420 -  Contracts  - In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea -  The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or  dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence -  Court in a number of cases has usually cautioned against criminalizing civil disputes, such as breach of contractual obligations - The legislature intended to criminalize only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted in involuntary and in¬efficient transfers, under Section 415 of IPC -  Cr.P.C., Section 482.  Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168,  Gian Singh v. State of Punjab, (2012) 10 SCC 303, referred .   2019 SCeJ 246

 

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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                         


 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

 

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2019 SCeJ 233

Cr.P.C., S. 456 – Restoration of the possession of the property to the person who was forcibly dispossessed . Click here

2019 SCeJ 230

Cr.P.C., Section 482  - Quashing -

a. Allegations of civil nature 

b. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive .Click here

2019 SCeJ 216

Criminal prosecution - Informant and the investigating officer were the same person - Hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal v. State of Punjab, (2018)2 SCeJournal 1314, shall continue to be governed by the individual facts of the case. 11 February, 2019 /Click here 

Prospective overruling

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

 

2019 SCeJ 187

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 . Click here

 

2019 SCeJournal 191

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. Click here

 

2019 SCeJournal 194

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. Click here

 

 

Decided 30/01/2019

Reported 30/01/2019

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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24 January, 2019

 CrPC, Section 319 - Power of the Court to proceed against other persons who “appear” to be guilty of an offence, though not accused before the Court. 2019 SCeJournal 140. Click here

25 January, 2019

 

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

22nd January, 2019

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

 

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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


17th January, 2019

 Penal Code, 1860,  S. 302, 326(A) and 460  - Cr.P.C., 1973  S. 354(3) -  Whether second conviction for murder would warrant the imposition of a death sentence -  ‘special reasons’  - ‘rarest of the rare’ . 2019 SCeJournal 128. Click here.

Updates this week

 

 18 January, 2019

 Penal Code, 1860,  S. 302, 363, 366 & 376(2)(i) – Cr.P.C., 1973  S. 354(3) - Special Reasons required to impose Death Penalty  - Rape and murder of minor girl aged 8 years - Life imprisonment with actual period of 25 years, without any benefit of remission. 2019 SCeJ 122

 

18 January, 2019

Penal Code, 1860, Section 306 – Abetment  - Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide -  In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide -  Act of abetment must be proved and established -  Penal Code, 1860, Section 107.  Amalendu Pal alias Jhantu v. State of West Bengal, (2010) 1 SCC 707, referredClick Here

 

18 January, 2019

Penal Code, 1860, Section 107 – Instigation. Click Here

 

8 January, 2019

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 


Service law  -  Equation of posts  - For considering the equation of posts, the following factors held to be determinative : 1. The nature and duties of a post; 2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; 3. The minimum qualifications, if any, prescribed for recruitment to the post; and 4. The salary of the post. 2019 SCeJ 104. Click Here

 

 

C.P.C. (V of 1908), O. IX, Rule 9 -  Application for restoration of the suit filed by the appellant-plaintiff was well within the period of limitation - Rojkam-order sheet of the Trial Court, shows the appellant-plaintiff was present in almost all hearings before the Trial Court which indicates that he was genuinely pursing the matter -  The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit – Matter restored. 2019 SCeJ 104

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Constitution  of India, Article 20(3) - Confessional statement  - Self­-incriminatory evidence - Recovery of material objects  - confessions that led to the recovery of the incriminating material were not voluntary, but caused by inducement, pressure or coercion -Negates the  incriminating circumstance based on such recovery.    2019 SCeJ 89 Click here

 

Identification of Prisoners Act, 1920, S. 4, 5  - Fingerprints - There cannot be any hard and fast rule that in every case, there should be a magisterial order for lifting the fingerprints of the accused. 2019 SCeJ 89 Click here


 2019

Service matter - Seniority -  Appointments are made of the teaching staff strictly in terms guidelines annexed to Schedule ‘F’ to the Rules, which envisages total continuous service rendered by the person in that particular cadre in any school or college, as the case may be, which may be a relevant consideration for the purpose of seniority and for promotion and later confirmation or becoming permanent in the cadre of teaching staff may not be the decisive factor for the purposes of determination of seniority of the teaching staff in the cadre under the scheme of Rules, 1981. *2019 SCeJournal 81* Click here

CrPC , S. 482 - Jurisdiction to quash the proceedings at the stage of issuance of process, or at the stage of committal, or at the stage of framing of charges, that is to say before the commencement of actual trial, in the light of material placed on record by the accused – Steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC laid down - Rajiv Thapar and Others v. Madan Lal Kapoor, (2013) 3 SCC 330, Click here

8th January, 2019

Criminal Trial - Suspicion - “may be true” to “must be true” -  Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true”- Acquitted -  IPC S. 307. 2019 SCeJournal 68. Click here 

8th January, 2019

Criminal Trial - If two views are possible accused is indeed entitled to have the benefit of one which is favourable to him.  2019 SCeJournal 68. Click here

7 January, 2019

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



7 January, 2019

Suit for Specific Performance of contract -  The issue of readiness and willingness, is the most important issue for considering the grant of specific performance of the contract. Material questions, which are required to be gone into for grant of the relief of specific performance. 2019 SCeJ 60 CLICK HERE

4 January, 2019

CrPC, 1860, S. 482 -  Compromise quashing – Non compoundable offences - High  Court  has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute. 2019 SCeJ 58. CLICK HERE

  

4th January, 2019.

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

            

4 January, 2019.

Penal Code, 1860 – Section  307, 325 - Quashed – Considering material on record, the medical certificate more particularly, the injuries sustained by the Complainant - It cannot be said that the intention of the accused was to cause death of the complainant – Under Section 307 Quashed. 2019 SCeJ 49. CLICK HERE

 

the SUBSCRIPTION Click Here

 


2019 SCeJ 43

Decided 3 January, 2019

Reported 3 January, 2019

 Arbitration and Conciliation Act, 1996

 Arbitration and Conciliation (Amendment) Act, 2015  - Past/former employees can act as an arbitrator – neither the amended Act nor the 1996 Act disqualify a former employee from acting  as  an  arbitrator,  provided  that  there are  no justifiable doubts as to his independence and impartiality.

 

 Appointment of  substitute arbitrator -  Procedure agreed upon by the parties for the appointment of the original arbitrator is equally applicable to the appointment of a substitute arbitrator, even if the agreement does not specifically provide so.


2019 SCeJ 37

Decided 3 January, 2019

Reported 3 January, 2019

 

Constitution of India, Article 227 - Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable – CPC (V of 1908), O. 39 R. 1,2.


(2019)1 SCeJ 33

Decided 2 January, 2019

 Reported 2 January, 2019

 

Industrial Disputes Act, Section 25(H)  -

 Retrenchment  - Workmans termination was held illegal and, in consequence thereof, he was awarded lump sum compensation - Not a case of a retrenchment

 Regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claiming re­employment in the services

 ‘EMPLOYMENT’ and ‘REGULARIZATION OF THE SERVICE” -  Distinction between.

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Evidence Act, 1872 -  Document executed in multiple parts – Is the second part to be considered as a primary or a secondary evidence? .  (2019-1) Punjab Law Reporter 323

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SUPREME COURT

 

Sale deed - Whether vitiated due to undue influence.(2018)2 SCeJ 1903

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CPC, O.VII R.11(d) - While deciding an application filed under O.VII R.11 of the CPC ,  merits and demerits of the matter cannot be gone into at this stage -  Only averments in the plaint are to be looked into.  (2018)2 SCeJ 1898

 

 

Limitation Act 1963, Article 54 -  In cases falling in second limb of Article 54 finding can be recorded only after recording evidence. (2018)2 SCeJ 1898

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Hindu Adoptions and Maintenance Act, 1956, Section 20(3) – Public policy – Whether the execution of a settlement deed by the father in favour of the daughters in terms of the compromise entered into between him and the mother would preclude the daughters from claiming maintenance and marriage expenses from the father? - No 2018 PLR IJ  86  (Punjab Law Reporter -  Important Judgments) Click here


Cr.P.C., Section 203 – Second complaint  -There is no provision in the Criminal Procedure Code or any other statute which debars a complainant from making a second complaint on the same allegations, when the first complaint did not lead to conviction, acquittal or discharge. (2018)2 SceJ 1874 Click Here

 

IPC, Section 420, 406 read with Section 34 – Under agreement for availing of intellectual services for marketing the products of the complainant, the accused did not pay the amount due and payable under the agreement - FIR quashed. (2018)2 SCeJ 1872 Click Here

Lease – Whether parties  are governed by Transfer of Property Act, 1882 because the lease was executed when the Tenancy Act, was not in force or would be governed by the tenancy act which was in force  on the date of filing of the suit (2018)2 SC e@Journal 1870

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Suit for Title

10 December, 2018

Suit for declaration of title - Entry made in the book of endowments  - Burden to prove ownership over the suit property is on the plaintiff – This document alone is not sufficient to claim the title over the suit premises as it was only intended to demarcate the adjoining temple premises. (2018)2 SCeJ 1843

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Punjab Law Reporter

CPC -  Plaintiff failed to file documents and inspite of claiming to have the documents with him - Adverse inference against the defendant can not be drawn. (2018-4) PUNJAB LAW REPORTER (Delhi) 43 CLICK HERE

 

 


 

CPC - Order 22 Rule 4 – Abatement of suit

PLR - Supreme Court e@Journal 

 

Lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant - This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole - If the interests of the codefendants are separate, ........... (2018)2 SCeJ 1775



2018)2 SCeJ 1761

*PLR - Supreme Court e@Journal*

*30 November, 2018*

 

Motor Vehicles Act, 1988, Section 168 – Just compensation  -  Grant of compensation exceeding the amount claimed.

 

Motor Vehicles Act, 1988, Section 168 – Deceased was having his wife, two minor children and aged father as dependants and as there is no other earning member in the family of the deceased, deduction of 40% of the salary for the personal expenses.

 





Hindu Succession Act, 1996 (30 of 1996) Section 6 – Hindu Succession (Amendment) Act, 2005 (39 of 2005) – Amendment in question is prospective in nature - Right of living daughters of a coparcener can only be appreciated in terms of Hindu Succession (Amendment) Act, 2005 if coparcener is also living on 09.09.2005.  (2018-4) PUNJAB LAW REPORTER (December)









26.10.2018

Hindu Succession Act, Section 6 - Ancestral property – Partition - Whenever a partition of ancestral property takes place, the share that a coparcener gets continues to be ancestral if on the date of partition he has a son - If a son is born subsequently, the ancestral character revives - 2018 PLR Important Judgments  34 (Karnataka) CLICK HERE







Decided on 29th October, 2018; reported in SCe@Journal on 29th October, 2018

Rent Act - Bona fide need – Remand. https://www.plronline.in/index/r/rent-act/#gsc.tab=0

 




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