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Todays Update

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

 

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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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December, 2018

IPC , Section 148, 149 read with Section 302 – Benefit of doubt  - Statement identifying the accused made to PW 1 and the IO – Statement of medical professionals in cross examination  that with the nature of injuries the deceased could not lived for more than 10  minutes - Witness would have reached much later .

(2018)2 SCeJ 1895

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December, 2018

Rent Act - Bona fide requirement of son – Rights of the parties stand crystallised on the date of institution of the suit – Mere fact that the son of the landlord was involved in another business subsequently, the bona fide need of the premises cannot be doubted. (2018)2 Supreme Court e@Journal 1885 Click for full note    


 

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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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