FAQ AND ANSWERS ON LAND LAWS

LOT OF QUERIES ON LAND REFORMS VIOLATIONS

2012-08-15T07:42:00.000-07:00

1. Is there any solutions for karnataka land reforms violations ?

2. Is there any way out to cope with proceedings of 79A and 79B before assistant commissioner ?

3. if we have violated karnataka land reforms does government confiscate land ?

4. How can we save our agricultural land when we brought land without knowing about karnataka land reforms act ?

5. Is there any provision under law to come out from the clutches of this draconian land reforms law ?

6. Can you provide us with some solutions since revenue officials made katha with bribe and now we are under trouble ?

THESE ARE SEVERAL QUESTIONS I GET DAILY IN MY EMAIL

ONE THING IS CERTAIN, LAW DOES NOT CONDONE THE VIOLATIONS, BUT ALL SHOULD NOT WORRY ABOUT THIS LAW. IT SHOULD BE PROPERLY UNDERSTOOD WITH DUE CARE IN STUDY OF THE FACTS SURROUNDING EACH CASE. SEVERAL EXEMPTIONS ARE THERE AND SEVERAL MEANS OF PROCEDURE IS THERE TO BUY AGRICULTURE LAND AND TO AVOID VIOLATIONS. NO ONE CAN GIVE EXACT IDEA WITHOUT LOOKING AND STUDYING DOCUMENTS. HENCE PEOPLE SHALL APPROACH AN EXPERT ADVOCATE NEARBY TO THEM, TO KNOW THEIR EXACT POSITION, WITH THEIR DOCUMENTS AND OFCOURSE FEE - DO NOT EXPECT EVERY THING FREE. OF COURSE LEGAL MATERIALS ARE FREE HERE, BUT WHAT EXACT POSITION OF EACH CASE SHALL ONLY BE ANALYSED BT ADVOCATE WITH PERFECT RESEARCH ON YOUR PAPERS. SORRY TO SAY THIS DO NOT CALL FOR EMPTY ADVISE.

WHETHER LAWYER ACT IN DUAL CAPACITY AS GPA HOLDER AND VAKALATH ATTORNEY

2012-07-21T05:06:00.000-07:00

Justice D Dhanuka of Bombay High Court in the case of AIR 1993 Bom 217 It is well settled law that the constituted attorney of a suitor has no right of audience in Court or to cross-examine witnesses. The Constituted Attorney is merely entitled to 'act' and 'appear' for a party but has no right to 'plead' in a Court. The expressions 'act' and 'appear' do not mean 'right to plead' as such. It has been so held by our High Court in the case of A.S. Patel v. National Rayond Corporation Limited, . It is permissible for an Advocate to act as a 'recognised agent' or a Constituted Attorney by virtue of Power of Attorney executed in his favour by a suitor and sign vakalatnama pleadings and affidavits on behalf of the donor of Power of Attorney to the extent provided in the Code of Civil Procedure as aforesaid. In all such cases the signature of Constituted Attorney on pleadings, affidavits, vakalatnama and other documents is liable to be equated to signature of a party itself for all practical purposes. It follows that in all such cases the plaintiff or the defendant is deemed to have signed the pleading by the hand of his Constituted Attorney. The pleadings are required to be verified and declared by the signatory thereof with reference to personal knowledge of the averments made therein or on basis of information and belief. The question to be asked is as to whether an advocate who acts as Constituted Attorney of a suitor in pursuance of power of attorney from his client is entitled to combine his role of a constituted attorney with that of an advocate in the same cause simultaneously. Members of the Bar are governed by the provisions contained in the Advocates Act 1961, well known principles and doctrines recognised for generations and are rightly described as partner in Administration of justice. Advocates in their professional capacity are enjoined to act with complete impartiality and detachment and not entitled to identify themselves with the clients or the cause personally. The paramount duty of an Advocate is to assist the Court in its task of administering justice. In, the event of there being any conflict between interest and duty, the Advocate must yield in favour of his duty to assist the cause of fair and impartial justice. An Advocate is expected to be fair and reasonable towards his opponent. All these principles bind the Advocates in discharge of their professional duties. Advocates belong to noble profession of law. On the other hand, a constituted attorney is entitled to identify himself with the donor of Power of Attorney and act in the same manner as the suitor-litigant is entitled to act. An Advocate is governed not merely by written provisions of the Advocates Act 1961 but also by traditions of the Bar built up for generation during the course of administration of justice for centuries. It is provided by Order III Rule 4 of the Code of Civil Procedure that a vakalatmana should be signed by the party or by his recognised agent in favour of the pleader. The question to be asked illustratively is as to whether the pleader acting in his capacity as constituted attorney of a litigant can sign such vakalatnama as a client in his own favour as an Advocate or in favour of the firm in which such constituted attorney himself is one of the partners. The answer is in negative. The question to be asked is as to whether the two roles can be combined? The question to be asked is as to whether it is not inherent in the scheme and the provisions of Code of Civil Procedure and implicit in the provisions contained in Order III Rule 4 of the Code of Civil Procedure and other connected provisions that advocate who acts or appears or pleads before the Court in a professional capacity must have a client with separate and distinct identity. The answer to these questions is obvious. For all practical purposes, the recognised agent of a suitor is on par with the suitor or client himself; an Advocate is not, as an Advocate is an independent person with a specific role in administration of justice. In certain situations advocates are permitted to accept power of attorneys from a client for purpose of acting in a suit or matter, sign pleadings, vakalatnama and affidavits on behalf of plaintiff or defendant as case may be. An Advocate may be appointed as a Receiver in a suit or a cause. No one can object to the Advocate accepting these assignments permissible under the law. The question still remains as to whether the advocate who is holding a power of attorney from a client to act and appear in a suit or matter can also act in the professional capacity in the same proceedings at the same time. The answer to this question is of too obvious and has to be in negative. Detachment and impartiality expected of an Advocate is likely to be jeopardised when an Advocate acts in both the capacities. The risk in allowing combination of two roles is far too serious. I must therefore, construe the Code of Civil Procedures harmoniously and in a manner so as to prevent confusion, anamoly and misunder-standing. In my opinion, law does not permit the combination of two capacities in the same cause. Law prohibits such combination and rightly so.

CIVIL COURT JURISDICTION INFORMATION AS DISCUSSED IN A CASE LAW OF KARNATAKA HIGH COURT

2012-07-07T09:46:00.001-07:00

KARNATAKA HIGH COURT
Amiya Vilas Swami And Ors. vs Shankha Brita Das And Ors. on 20 September, 2007

CITATION:- 2008 (3) KarLJ 16

JUDGMENT BY JUSTICE Subhash B. Adi, J.

1. Though this matter was listed for admission, since it involves the only question of jurisdiction of the Civil Court, as the appeal is against the rejection of plaint, under Order 7, Rule 11 of the Civil Procedure Code, 1908, the matter was taken up for final disposal with the consent of both the parties.

2. This is an appeal by the plaintiffs 1 and 6 questioning the order dated 1st March, 2007 passed in O.S. No. 1758 of 2003 in I. No. V.

3. The Trial Court has allowed the I.A. No. V filed under Order 7, Rule 11(d) of the CPC and rejected the plaint holding that, the matter can be inquired by the Registrar under Section 25 of the Karnataka Societies Registration Act, 1960 (hereinafter referred as 'Act') and not by the Civil Court.

4. The case of the plaintiffs is that, 6th plaintiff-Society was registered in the year 1978 in the name and style as, International Society of Krishna Consciousness (ISKCON). Plaintiffs 1 to 5 and defendants 1 to 10 are the members of the said Society. The said Society having its registered office at Hanuman Temple Compound, Bangalore. Notwithstanding, the registration of the 6th plaintiffs Society, the 1st defendant conducted activities of movement through the said group without involving the 6th plaintiff or the Governing body of the 6th plaintiff. That for rising donation the ISKCON, Mumbai permitted its angalore Branch to use the exemption granted to ISKCON, Mumbai under Section 80-G of the Income-tax Act, 1961. The Bangalore Branch had a Bank account and the 1st defendant was operating the same as a President and the 1st defendant was acting in his capacity as President of Bangalore Branch of ISKCON, Mumbai. After registration of the 6th plaintiff, it was not pursuing its objects or functioning according to its rules and regulations in any manner including conducting any meeting either of the governing body or the general body, some leaders in the movement advised the 1st and 2nd plaintiffs and other members of the governing body that the 6th plaintiff should not exist as an independent entity, as such existence would affect the growth and integrity of the movement in India. The 1st defendant and the 1st and 2nd plaintiffs had also by then realised that, Srila Prabhupada himself had not thought it fit to have more than one entity in India for propagation of movement and that they were wrong in establishing 6th plaintiff. They felt that the activity by 6th plaintiff would violate Srila Prabhupada's wishes and that was the last thing they being his disciples and humble servants, dared to do. Therefore, the governing body did not carry on any activity through or in respect of 6th plaintiff including holding of meeting of the governing body or general body. The members of the governing body individually also did not evince any interest in the working of the 6th plaintiff. The 6th plaintiff stopped functioning in all the respects. There was none to attend even the statutory obligations of the 6th plaintiff. The 1st to 5th plaintiffs did not resign their offices in the governing body of the 6th plaintiff, however did not function in their respective offices either, and there having been no general body other than the 22 members, who constituted the governing body and Sin Bhaktha Dasa Brahmachari, who had subscribed to the memorandum of association, the general body also did not elect a new Governing body. 6th plaintiff became non-functional and as good as closed.

5. It is also stated that, 1st to 5th plaintiffs had not resigned and gave up their membership of the 6th plaintiff, the governing body or the general body did not have any legal or factual impact or consequence, since the 6th plaintiff had ceased to function. The members of the governing body are the only members apart from Sri Bhaktha Dasa Brahmachari, constituting the general body of the 6th plaintiff, even to this day. He further stated that, 1st defendant did not convene any meeting either of the governing body or of the general body of the 6th plaintiff to the best of knowledge of 1st to 5th plaintiffs and there was no scope or opportunity for any other persons, other than the first 23 members to became members of the 6th plaintiff.

6. It is alleged that, to the shock of the plaintiffs they learnt that 11th defendant is claiming as President, 12th defendant claiming as Vice-President, 13th defendant claiming as Secretary, 14th defendant claiming as Treasurer, 15th defendant to 17th defendant claiming as members of the governing body of the 6th plaintiff and got filed a suit in the name of 6th plaintiff showing 13th defendant herein is representing he 6th plaintiff against ISKCON, Mumbai and sought for certain declaratory and injunctive reliefs in O.S. No. 7934 of 2001.

7. It is alleged that, because of the governing body that has been legally constituted, consists of the 1st to 10th defendants and 1st to 5th plaintiffs, and had not admitted the 11th to 17th defendants as members of the 6th plaintiff. Consequently, 11th to 17th defendants are neither part of 6th plaintiff nor they are in management and control of the 6th plaintiff and they are only imposters. They taking advantage of the 1st to 10th defendants and the 1st to 5th plaintiffs being inactive and other 7 members of the governing body having died and consequently the governing body having become non-functional, the 11th to 17th defendants and their henchmen have some time before the institution of O.S. No. 7934 of 2001 illegally laid their hands on the documents and records of the 6th plaintiff and fraudulently manipulated the same by alteration, falsification, forgery, fabrication, substitution and may even by destruction as well as other nefarious means to make it appear as if the 11th to 17th defendants have become the office-bearers and members of the governing body as if the 6th plaintiff, 6th plaintiff has vast income and expenditure and huge assets and capital fund and liabilities which in fact are not true. The plaintiffs 1 to 5 and defendants 1 to 10 did not admit defendants 11 to 17 to the 6th plaintiff-Society and they have no manner of right.

8. The defendants 11 to 17 appeared before the Trial Court and they filed an application in I.A. No. 5 under Order 7, Rule 11(d) inter alia alleging that, the suit is not maintainable as the same is barred by law. It is alleged that 6th plaintiff is a Society registered under the provisions of the Karnataka Societies Registration Act, 1960 and there is a separate mechanism provided for adjudication of all the disputes alleged in the plaint including the allegations made against defendants 11 to 17. It is further stated that, in view of the provisions of Section 25 of the Act, the suit is not maintainable as the same has to be inquired and decided only under the provisions of the Act more particularly under Section 25 of the Act.

9. The Trial Court after hearing both the sides found that Section 25 of the Registration Act provides a complete mechanism to enquire all the matters referred to in the plaint and also adjudicate the same and further held that, the dispute can be enquired by the Registrar under Section 25 of the Act and same cannot be inquired by the Civil Court. On this finding, the Trial Court rejected the plaint.

10. This order is assailed in this appeal. On behalf of the appellants Sri Jayakumar S. Patil, learned Senior Counsel, submitted that, Section 25 does not exclude the jurisdiction of the Civil Court to entertain the suit. There is no mechanism provided for adjudication of the disputes referred to in the suit nor the provisions of the Act, provide for adequate remedy to adjudicate the issues arisen in the suit. There is no provision provides for a mechanism for adjudication of the dispute one in the nature alleged in the suit nor it gives finality to the dispute. In the absence of the provisions under the Act, the Civil Court's jurisdiction is not ousted by implication.

11. As regards to the finding of the Trial Court that, by implication the jurisdiction of the Civil Court is excluded under Section 9 of the Code of Civil Procedure, he referred to the provisions of the Act namely, Section 5 of the Act and submitted that Section 5 relates to mode of forming a Society, a Society could be formed by any 7 or more persons above the age of 18 years associated by any persons specified in Section 3, subscribing their names to the Memorandum of Association. The forming of an Association is contractual matters between the parties who formed association. Forming of association is one of the fundamental rights guaranteed under Article 19 of the Constitution and it is not a statutory right, nor it is regulated under any statute nor it is controlled by any statute.

12. He referred to Section 9 of the Act and pointed out that Section 9 relates to alteration of Memorandum of Association. He also referred to Section 10 in respect of change of the name, rules and regulations. Referring to Section 10, he submitted that, amendment application shall be submitted before the Registrar within 30 days along with the necessary fees. The Registrar may grant or refuse to register the amendment, under Sub-section (2) an appeal is provided before the Karnataka Appellate Tribunal, to be filed within 60 days from the date of communication of the refusal. He submitted that, in the case of alteration or amendment of the name of the Society, provision is made for an appeal against the decision of the Registrar. Similarly, he referred to Section 13 and submitted that, Section 13 deals with filing of balance sheet and annual list of governing body before the Registrar and submitted that it does not provide for an adjudication by the Registrar.

13. He referred to Section 25 of the Act and submitted that, Section 25 of the Act conferred power on the Registrar to enquire on his own motion or on the application of the majority of the members of the governing body or not less than 1/3rd of the members of the Society in the matter of Constitution, working and financial condition of a registered Society. He further submitted that, the power conferred on the Registrar under said provision is for holding an enquiry and communicating the report of an enquiry in terms of Section 25, Sub-section (2), Clause (c), Sub-clause (iii) of the Act. By relying on the said provision, he further submitted that, the enquiry made under Section 25 is not in the nature of adjudication nor it gives finality nor adequate remedy is provided to redress the grievance of the aggrieved party nor the aggrieved party can take up the matter in appeal. All that Section 25 deals with, is an enquiry in the matter of Constitution, financial and working of the Society and the Registrar on enquiry to submit report to the Society, and does not decide the dispute.

14. He relied on Section 25(2), Clause (c) and submitted that, in case of holding of general body, if the Registrar finds that a general body meeting of the Society is required to be held, he can direct the Society to hold a general body meeting or on failure to convene the meeting he may convene the general body meeting. Referring to this provision, he submitted that except for directing the society to hold a general body meeting or holding a meeting by himself on failure of the society, the Registrar has no other power. He further submitted that, Section 26 of the Act provided for an enquiry by the Registrar and to pass orders. The order passed under this Section is appealable before the Kamataka Appellate Tribunal. He further submitted that, under the said section, power is conferred on the Registrar to adjudicate and decide and remedy is provided to the aggrieved party to file an appeal before the Karnataka Appellate Tribunal.

15. Similarly, he also referred to Section 27 of the Act and submitted that, in the matter of cancellation of registration, the power is conferred on the Registrar to hold an enquiry and to pass an order. The order passed by the Registrar under the said provision is again appealable under the provision of Section 27(3) before the Appellate Tribunal within 60 days from the date of communication of the order.

16. He further submitted that, insofar as Sections 10, 26 and 27 of the Act are concerned, the power is conferred on the Registrar to adjudicate and decide the dispute and subject to appeal the said orders reach finality, he further submitted that a clear remedy is provided under these provisions for the adjudication of dispute in relation to the subject-matters mentioned therein. However, in the matter of constitution of the Society only enquiry is provided under Section 25 with no power to decide the dispute, except submitting his report to the concerned society.

17. By referring to Section 27-A of the Act he submitted that, the State Government may appoint an Administrator and there is no power of adjudication of any disputes, the appointment of Administrator may be based on the report of the Registrar. He submitted that the intention of the Legislature is clear from the scheme of the Act, inasmuch as it is only regulatory and does not provide for control of affairs or for adjudication of the dispute relating to the Constitution of the Society. He further submitted that, the matter for which power of adjudication is not conferred on the Registrar, same cannot be adjudicated by him. In the absence of mechanism for adjudication it cannot be impliedly inferred that the jurisdiction is conferred on the Registrar. He submitted that, the Act will not exclude the jurisdiction of Civil Court.

18. To infer the exclusion of the jurisdiction of the Civil Court by implication, there has to be a complete mechanism for adjudication of the dispute and there must be adequate remedy to the aggrieved party and must reach finality. He further submitted that, the provisions of the Act or the scheme of the Act, does not provide for adjudication of the dispute relating to the Constitution of the Society or to the dispute relating to the election of the members to the Governing Council or to inter se dispute between the members nor the provisions provide for adequate remedy. By referring to the provisions of the Act and the scheme of the Act, he further submitted that, the learned Trial Judge erred in holding that by implication the jurisdiction of the Civil Courts is ousted.

19. In this regard, he also referred to Section 9 of the CPC and submitted that Section 9 confers jurisdiction of the Civil Court on all the matters unless it is expressly or impliedly barred by law. In support of his contention, he referred to a decision in the matter of Dhulabhai v. State of Madhya Pradesh and Anr. and
submitted that, the Civil Court's jurisdiction get excluded only if there is an adequate remedy is provided under the special statutes, which the Civil Court normally has. What is required to be seen in the matter of ousting of the jurisdiction of the Civil Court by implication, is whether a remedy provided under the special statute gives a finality, and there is an adequate remedy provided to the aggrieved party on par with the Civil Court. He further submitted that, even in case if the provisions are made for adjudication before the Special Tribunals, by that itself will not exclude the jurisdiction of the Civil Court, if the Special Tribunal cannot act in conformity with the fundamental principles of judicial procedure. He also submitted that normally, the exclusion of jurisdiction of the Civil Court should not be readily inferred unless the conditions as formulated by the Apex Court in the matter of Dhulabhai's case are found in the special statute. By referring to paras 31 and 32 of the said judgment he submitted that none of the conditions stated by the Apex Court are provided under the provisions of the Act. There is no provision, which provides for adjudication and finality to the dispute nor there is any remedy for appeal. He further submitted that, even in case of remedies provided, such remedies must be adequate and must give finality. He further submitted that, jurisdiction conferred under the Special Statutes must be on par with the procedure prescribed to the Civil Court to ensure the adequate opportunity to the parties to adjudicate their dispute. Only in such circumstances it can be inferred that the jurisdiction of the Civil Court is ousted by an implication and not otherwise.

20. He further relied on another decision in Nagri Pracharini Sabha and Anr. v. V. Additional District and Sessions Judge, Varanasi and Ors. , arising out of the provisions of the Societies Registration Act, 1860 (Uttar Pradesh Amendment). Referring to the said decision, he submitted that, through Section 25 of the Uttar Pradesh Act provide for adjudication of election dispute, but in case, where a member who could not comply with the requirement to maintain the election dispute under Section 25 of the said Act, can challenge the election before the Civil Court.

21. By relying on the said decision, he further submitted that, there must be remedy provided under the special statute, if there is no remedy provided to aggrieved party, then it cannot be inferred that jurisdiction of Civil Court is ousted by implication.

22. He further relied in the matter of Dr. K.T. Shivaiah v. G. Puttaswamy Gowda and Anr. andsubmitted that the rules framed by the society are in the nature of contract between the member and the member and members and the society. In other words, rules and regulations of such society or association cannot be construed as statutory provisions. He also relied on another decision in Inderjit Barua and Ors. v. Election Commission of India and relied on para 7 of the said judgment and submitted that the power of suo motu is a discretion of the authority. He further relied on another decision in the matter of Sri Chandrasekhara Bharathi v. State of Karnataka and Ors. 1991 (2) Kar. L.J. 392 (DB) and submitted that, the Registrar can only make a recommendation and cannot pass an order. Relying on these decisions and also the provisions of the Act, he further submitted that, neither expressly nor by implication, the jurisdiction of the Civil Court is ousted. The exclusion of the jurisdiction by implication means that the provisions, which are not expressly made must be found by implication i.e., even though there is no express provision barring the jurisdiction of the Civil Court, but if the provision clearly provide for adequate . and clear mechanism for adjudication of the dispute, then the ouster of jurisdiction of Civil Court can be implied.

23. Sri S.K.V. Chalapathy, learned Senior Counsel appearing for some of the defendants 11 to 17 submitted that, the jurisdiction of the Civil Court is ousted by implication and not by express provision, what is required to be seen is, whether there is an adequate measure is provided under the Act, which confers the jurisdiction on the statutory authority to adjudicate the matter. He submitted that, reading of the provisions of the Act clearly shows that, once the society is registered, it comes within the fold of the provisions of the Act and the jurisdiction is vested in the statutory authority to decide all the matters including the constitutional working and financial condition of the society. He further submitted that, the provisions of Sections 6, 11, 13, 14, 25, 26, 27 and 27-A read with Rules 5, 6 and 8 provide for a complete mechanism for adjudication of all the disputes including the disputes touching the Constitution of the Society. He mainly referred to Section 25 of the Act and submitted that, Section 25 of the Act and submitted that, Section 25 provides an enquiry by the Registrar of the Society, who can hold an enquiry either suo motu or on the application made by the majority members of the governing body or 1/3rd of the members of the Society. An enquiry, which is contemplated under the provisions of Section 25 of the Act, also provides for submitting a report, and based on the said report, the Registrar, if he feels that a election is required to be held for the society, he can direct holding of a meeting under Section 25, Sub-section (2), Clause (c) of the Act and he can also submit a report to the Government. If the society is not functioning in the manner it is required to function under the provisions of the Act, the Government based on the report, can take a decision to appoint the Administrator and the Administrator can hold an election for the governing body.

24. He submitted that, a reading of the averments in the plaint clearly shows that the dispute relates to Constitution of the Society and the Constitution of the society is one of the matters, which could be enquired under Section 25 of the Act. The enquiry contemplated under Section 25 is not a hollow formality, the enquiry result is submitted by way of report. The Registrar has power to convene the General Body Meeting for holding the election to the governing body. Relying on Section 25, he submitted that, the dispute alleged in the suit relates to Constitution of the society and this matter can be adjudicated only by the Registrar of the Society. In this regard, he also relied on paragraphs 5, 11, 12, 13 and 16 of the plaint and submitted that, the allegation of the plaintiffs is that, the defendants 11 to 17 are not members of the society, they do not constitute the general body and plaintiffs claim that, they formed the society and they constituted the society. If these allegations are looked into, it only shows that, the dispute relates to the Constitution of society and the enquiry of the Constitution of the society is expressly provided under Section 25 of the Act. In this regard, he relied on a decision in the matter of Kodava Samaja, Bangalore v. District Registrar of Registration of Societies, Bangalore and Anr. And referred to para 5 and submitted that, an enquiry into the Constitution and working of the registered society would include the enquiry into the propriety of continuation by a working committee and the need to elect a new committee by existing working committee and further Section 25, Sub-section (2), Clause (c) should be read so as to include a power in the Registrar to direct the holding of the election to the General Body if the occasion demands. Relying on said judgment, he further submitted that the power is conferred on the Registrar to take such a decision in the matter, which warrants in the circumstances of the case and if a complaint is made to the Registrar under Section 25, he can, not only hold an enquiry, but also take an appropriate decision. He further, submitted that certain rights, which are to be exercised under special statute, cannot be exercised or worked out, otherwise than under the provisions of the special statutes.

25. He relied on another decision in the matter of Advocates' Association, Bangalore v. The District Registrar and Registrar of Societies, Bangalore Urban District and Ors. 2006 (4) Kar. L.J. 526 : AIR 2006 (NOC) 1166 (Kant.), and submitted that this Court has observed that, the Registrar has power to grant an interim order in aid of final relief. It also provides an enquiry regarding the Constitution and working of the registered society, which would include, an enquiry into the propriety of Constitution. He further, submitted that, this Court has held that, Section 25 confers power on the Registrar not only to hold an enquiry, but also to pass final orders. He submitted that, a mechanism, is provided under the provisions of the Act, which impliedly oust the jurisdiction of the Civil Court. He also relied on another decision in the matter of Addanki Tiruvenkata Thata Desika Charyulu (since deceased) and, after him his L.Rs. v. State of Andhra Pradesh and Anr. , and referred to para 23 and submitted that, when the Legislature establishes a special Tribunal or body with limited jurisdiction, whatever jurisdiction is conferred on the Tribunal, the said jurisdiction has to be exercised only by the Tribunal and anything remaining has to be worked out in the Civil Court. He submitted that, the enquiry in relation to the working of the society, as well as Constitution, these two matters could be enquired by the Registrar and to this extent, the plaintiffs cannot agitate their grievance before the Civil Court, which is impliedly excluded from the purview of the Civil Court.

26. He also relied on another decision in the matter of Raja, Ram Kumar Bhargava (dead) by L.Rs v. Union of India , referring to para 9, and submitted that, exclusion of Civil Court's jurisdiction can be inferred by statutory remedy provided under the special statute. If the machinery is provided for enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision, the Civil Courts' jurisdiction is impliedly excluded. He further, submitted that, the Trial Court considering the provisions of Section 25 and a mechanism provided therein has found that the enquiry into the Constitution of the Society can be made only by the Registrar of Society and not by the Civil Court.

27. Sri Shantaraj, learned Senior Counsel appearing for defendant 11 submitted that admittedly the matter relates to the Constitution of the Society and these matters are governed by the statutory provisions. In such circumstances, the common law right is impermissible, as it is purely a statutory right flowing from the provisions of the Act. If a mechanism is provided under the special statute, the Civil Court cannot exercise its jurisdiction and further submitted that, Section 25 read with Rule 8 of the Rules framed under the provisions of the Act provides for complete mechanism and a remedy for adjudication of the dispute alleged in the suit and further submitted that, in case of statutory rights, a remedy has to be worked out, only under the provisions of the special statute and not before the Civil Court.

28. In the light of the contentions raised by both the sides, the only point that arises for consideration in this appeal is: Whether the provisions of Karnataka Societies Registration Act impliedly oust the jurisdiction of the Civil Court?

29. To understand the case of the plaintiffs, it is useful to extract the prayers sought for by the plaintiffs at para 31 of the plaint:
(a) declaring that the first to the fifth plaintiffs and the first to the tenth defendants constitute the governing body of the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79;
(b) declaring that the eleventh to the seventeenth defendants have no right to manage or control the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79;
(c) as a consequence of relief (a) and (b) directing, by way of mandatory injunction, the eleventh to the seventeenth defendants to make over to the governing body of the sixth plaintiff comprising the first to the fifth plaintiffs and the first to the tenth defendants or such of the latter as might be willing to be on the governing body all the assets, effects, affairs, books of account, records and the like of the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79;
(d) restraining, by way of perpetual injunction, the eleventh to the seventeenth defendants from interfering with the management and control of the sixth plaintiff, which is a society registered under the name and style International Society for Krishna Consciousness under the Karnataka Societies Registration Act, 1960, under Registration No. 49/1978-79, by the governing body comprising the first to the fifth plaintiffs and the first to the tenth defendants or such of the latter as might be willing to be on the governing body;
(e) awarding costs; and
(f) granting such other relief or reliefs as this Hon'ble Court may deem fit in the circumstances of the case.
From the prayer, it is clear that, the plaintiffs have sought for a declaration that plaintiffs 1 to 5 and defendants 1 to 10 constitute a governing body of the 6th plaintiff and that the defendants 11 to 17 have no right to manage or control sixth plaintiff and for direction to defendants 11 to 17 to make over the governing body of the sixth plaintiff comprising the first to the fifth plaintiffs and the first to the tenth defendants and for perpetual injunction.

30. The dispute is between two groups namely, plaintiffs 1 to 5 and defendants 1 to 10 on one side and defendants 11 to 17 on the other side.

31. Plaintiffs allege that, defendants 11 to 17 are imposters, they are not the members, do not constitute the governing body of the sixth plaintiff-Society and further they claim that they are the members, they are the governing body and they constitute the society. Whether these disputes could be decided by the Registrar under Section 25 and whether Section 25 provides for a complete mechanism for adjudication of such right?
Section 25 of the Act reads as under:
25. Enquiry by the Registrar, etc.-(1) The Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the Constitution, working and financial condition of a registered society.
(2) The Registrar or the person authorised by him under Sub-section (1) shall have the following powers, namely.-
(a) he shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other properties belonging to or in the custody of the society and may summon any person in possession or responsible for the custody of any such books, accounts, documents, securities, cash or other properties to produce the same at any place at the headquarters of the society or any branch thereof;
(b) he may summon any person who, he has reason to believe, has knowledge of any of the affairs of the society to appear before him at any place at the headquarters of the society or any branch thereof and may examine such person on oath;
(c) (i) he may, notwithstanding anything contained in this Act or in any rule or regulation prescribing the period of notice for a general meeting of the society, require the governing body of the society to call a general meeting at such time and place at the headquarters of the society or any branch thereof and to determine such matters as may be directed by him. If the governing body of the society refuses or fails to call a meeting, he shall have power to call it himself;
(ii) any meeting called under Sub-clause (i) shall have all the powers of a general meeting called under the rules or regulations of the society and its proceedings shall be regulated by such rules or regulations;
(iii) when an enquiry is made under this section, the Registrar shall communicate the result of the enquiry to the society concerned.

32. Section 25 as extracted above clearly shows that, the Registrar can hold an enquiry in the matter of Constitution, working and the finance. This power the Registrar can exercise either suo motu or on application, whether such enquiry gives finality to the dispute, whether it provides for adequate remedy to the parties to agitate their grievances.

33. Reading of provisions of Section 25 shows that, the Registrar can hold an enquiry and under Section 25, Sub-section (2), Clause (c), Sub-clause (iii), he can communicate the result of the enquiry to the society concerned. Section is silent as to what happens to the report, or whether the Registrar can take further decision on the basis of enquiry. If a society is to be communicated with the result of the enquiry, whether such a society is bound by the report or whether the society in pursuance of the said report could take action, all that is provided is only enquiry and submitting of report. Under Section 27-A of the Act, the Government can appoint an Administrator, if the society fails to hold an election even after expiry of the term of the governing body and if there is long pendency of litigation or is not able to hold the annual general meeting, in such circumstances, the power is conferred on the State Government to appoint Administrator. This is again the discretion of the State Government. It is not mandatory for the State Government to appoint Administrator based on report or based on information. The appointment of an Administrator will not resolve the inter se dispute between two groups claiming to constitute valid governing body or valid general body. In this case, both the groups are claiming that they are in the management or they are in the governing body. Provisions of Section 25 or 27-A do not provide for power to adjudicate, as to whether A' group is in governing body or 13' group is in governing body.

34. Section 9 of the CPC confers power on the Civil Court to try all the suits of civil nature, except which are expressly or impliedly barred. It is nobody's case that, the jurisdiction of the Civil Court is expressly barred under the provisions of the Act. It is only by implication, the jurisdiction of the Civil Court is sought to be ousted. Implication is an indirect method of ousting the jurisdiction of the Civil Court. In such a case, the provisions which oust the jurisdiction of the Civil Court, must provide for a mechanism to adjudicate such dispute. The cumulative effect of the statutory provision should provide for adequate remedy on par with the jurisdiction of the Civil Court. In such circumstances, it can be inferred that the jurisdiction of the Civil Court is impliedly excluded.

35. In this regard, a decision is relied by the learned Senior Counsel for the appellant in Dhulabhai's case, the Apex Court has considered as to, what constitutes the ouster of jurisdiction of the Civil Court by implication, and has observed that, the Civil Courts' jurisdiction must be held to be excluded, if there is an adequate remedy to do, what the Civil Court would normally do in a suit. This observation clearly indicates that the special statute, which provides for adjudication of the dispute, must give finality and must provide a jurisdiction that is vested in the Civil Court vis-a-vis, the enquiry that is contemplated under the special statute to be on par with the jurisdiction of the Civil Court. Such provisions would impliedly exclude the jurisdiction of the Civil Court. The Apex Court while interpreting Section 9 of the CPC has further observed that, sufficiency of the remedies is one of the criteria. Further observed that, even the sufficiency of the remedies provided for by statute may be relevant but a decisive, what is required to be seen is, that the remedies normally associated with the actions in Civil Courts are prescribed by the said statute to infer the implied bar. The exclusion of the jurisdiction of the Civil Court should not be normally inferred unless the statute by implication provide for adequate remedies and complete mechanism for adjudication of the dispute, this can be gathered from the intention of the legislation and scheme of the Act. If the entire scheme provides for complete adjudication of the matter and gives finality and gives adequate or sufficient remedies to the aggrieved party, it can be held that, by implication the jurisdiction of the Civil Court is barred. It is useful to extract the conditions specified in para 32 of the Dhulabhai's case. The Apex Court has laid down as many as seven conditions:
(1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
It is clear from the above observation that, an examination of the scheme of the particular Act is necessary to find out the adequacy or the sufficiency of the remedies provided.

36. The jurisdiction of the Civil Court is excluded without there is an express bar under law, where there is adequate remedy available to the party to adjudicate their grievance under the special statute. If the procedure of enquiry provided under the Civil Procedure is fulfilled otherwise under the provisions of special statute, it is sufficient to infer the implied bar. The affording an opportunity and holding an enquiry must be found under the special statute. In such circumstances, whether expressly barred or not by implication, the jurisdiction of the Civil Court is ousted.

37. In identical circumstances, the Apex Court in a decision in the case of Nagri Pracharini Sabha, while interpreting Section 25 of the Societies Registration Act as amended in Uttar Pradesh has held that, though Section 25 of the said Act provides for a remedy to challenge the election of the members of the governing body, but it is subject to compliance with certain statutory requirement and in case if a member who cannot comply with the requirement, he can still file a suit for adjudication of the election dispute, even though the remedy is provided for adjudication of election dispute, if the aggrieved party cannot invoke the said provision for want of compliance of the statutory requirement, still he is not barred to challenge the same in common law Court, it is clear that there must be remedy to the aggrieved party.

38. In this case, reading of Section 25 does not provide for raising any such dispute nor provide for adjudication, hence it cannot be inferred or understood to mean that the dispute touching the Constitution or a dispute between the members and the members and members and the society could be adjudicated. What is not provided in law cannot be inferred.

39. The decision relied by Sri S.K.V. Chalapathy in Dhulabhai's case, at para 20 which also shows that there has to be adequate, statutery remedy to infer or imply the ousting of the jurisdiction of the Civil Court.

40. The discretionary power vested in the State to appoint an Administrator though it is stated that it has to be exercised reasonably and not arbitrarily, however, conferring a discretionary power on the State cannot be understood to mean that a remedy is available for the party to adjudicate his grievances and that cannot be termed as effective, sufficient or adequate remedy for adjudicating their grievances nor it is a remedy. The decision in the matter of Jitendra Nath Biswas v. Empire of India and Ceylone Tea, Co. and Anr. , wherein the Apex Court while interpreting the
provisions of Industrial Disputes Act has held, that the Civil Court's jurisdiction is ousted as the provisions of Industrial Disputes Act, 1947 provide for complete mechanism and adequate remedy to decide and give finality to the dispute. It is in the said context, the Apex Court has held that, if a complete mechanism is provided for the parties for adjudication of the dispute by special statute, then by necessary implication, the Civil Court's jurisdiction is excluded. It is also observed that the discretionary power has to be exercised reasonably and not arbitrarily, but the said observation is made in the light of remedy available and it cannot be understood to mean that itself is adequate remedy. The discretionary power is not related to adjudication of the dispute nor there are any other provisions which provide for adjudication, as such, the comparison of the provisions of the Societies Registration Act cannot be made with the provisions of the Industrial Disputes Act, to rely on the decision in the matter of Jitendra Nath Biswas.

41. Reading of provisions of Sections 10, 26 and 27 of the Act, it is clear that the intention of the Legislature is to provide adjudication only in respect of the matters mentioned therein, wherein the Registrar can hold an enquiry and pass an order and that order becomes final subject to appeal provided to the Appellate Tribunal. In these matters, adequate remedy is provided, but, as far as the enquiry contemplated under Section 25 is concerned, there is no such provision, which provides adjudication and give finality to dispute. The Apex Court in Dhulabhai's case has observed that the remedy, which must be adequate and must give finality. Adequacy of the remedy is one of the requirements to exclude the jurisdiction of the Civil Court. As such, unless there is an adequate, effective and sufficient remedy provided by special statute, the jurisdiction of the Civil Court cannot be impliedly ousted.

42. By reading of the provisions of Section 25 or Section 27-A read with Rule 8, they only provide for enquiry by the Registrar and to make a report to the Society, and at the best to the State Government and nothing more than that. If recommendation is to be accepted by the State, whether the State has to take action is also not mandatory. Even if action is taken, that action is not adjudication of dispute, but it is taking over of the management by appointment of an Administrator, which cannot be construed as remedy to the aggrieved party.

43. The reliefs sought for by the plaintiffs are two fold, one is declaring the plaintiffs 1 to 5 and defendants 1 to 10 are the members of the governing body and they constitute the sixth plaintiff-Society and the second one is, a declaration that the defendants 11 to 17 do not form the governing body nor they constitute sixth plaintiff-society. In my opinion, Section 25 is not a provision to adjudicate this dispute particularly when the plaintiffs allege that, defendants 11 to 17 are imposters, which matter is not within the domain of the Registrar to enquire, whether the defendants 11 to 17 are imposters and the power that is provided under Section 25 of the Act is not a mechanism much less a mechanism for adjudication by a Registrar. Even assuming for the argument sake that there is some mechanism for an enquiry, that by itself is not sufficient to oust the jurisdiction of the Civil Court or to confer jurisdiction on the Registrar to adjudicate the matter.

44. No jurisdiction can be conferred on the Registrar which the legislation has not provided. The Trial Court without looking into the provisions and without even considering the scope of Section 25 of the Act, in one sentence has held that, the Registrar can hold an enquiry under Section 25 of the Act and not the Civil Court. In my opinion, this finding of the Trial Court is most erroneous and is absolutely contrary to the scope of Section 25 of the Act, the Trial Court has not even considered what is the remedy available under Section 25 of the Act, what is to be decided by the Registrar. As stated above, bar of jurisdiction of the Civil Court by implication means, what is not expressly stated is by implication provided, i.e., adequate mechanism to oust the jurisdiction of the Civil Court. Exclusion of jurisdiction of the Civil Court cannot even be normally inferred, unless adequate provision is made to resolve the dispute. I am of the opinion that neither Section 25 of the Act nor any other provisions of the Act provide for remedy to adjudicate the dispute one raised in the suit and the Trial Court is not justified in rejecting the plaint. The appeal deserves to be allowed.

45. Accordingly, the appeal is allowed. The order dated 1st March, 2007 passed in O.S. No. 1758 of 2003 on I.A. No. V is set aside. The Trial Court is directed to proceed in the matter in accordance with law.

WHEN STATE LAW IS REPUNGANT TO CENTRAL ACT - COMMENCEMENT - IMPLIED REPEAL 2012 SC – CB

2012-06-30T21:00:00.001-07:00

JUSTICE S.H. KAPADIA, JUSTICE D.K. JAIN, JUSTICE SURINDER SINGH NIJJAR, JUSTICE RANJANA PRAKASH DESAI, JUSTICE JAGDISH SINGH KHEHAR in the case of STATE OF KERALA & ORS. Vs. M/S. MAR APPRAEM KURI CO.LTD. & ANR., 08/05/2012 FACTS IN ISSUE:- The lis in the present case arose under the following circumstances. Many of the private chitty firms remained out of the regulatory mechanism prescribed in the Kerala Chitties Act, 1975 by registering themselves outside the State but continued to operate in Kerala. Because of this, investor protection became difficult. Consequently, Section 4 of the said 1975 Act was amended vide Finance Act 7 of 2002. By the said amendment, sub-section (1a) was inserted in Section 4. This amendment intended to bring in chitties registered outside the State having 20% or more of its subscribers normally residing in the State within the ambit of the said 1975 Act. Being aggrieved by the said Amendment, the private chitty firms challenged the vires of Section 4(1a) of the 1975 Act as repugnant under Article 254(1) to the Central Chit Funds Act, 1982. …….. whether the Kerala Chitties Act 23 of 1975 became repugnant to the Central Chit Funds Act 40 of 1982 under Article 254(1) upon making of the Central Chit Funds Act 40 of 1982 (i.e. on 19.08.1982 when the President gave his assent) or whether the Kerala Chitties Act 23 of 1975 would become repugnant to the Central Chit Funds Act 40 of 1982 as and when notification under Section 1(3) of the Central Chit Funds Act 40 of 1982 bringing the Central Act into force in the State of Kerala is issued? HELD:- i) On timing, we hold that, repugnancy arises on the making and not commencement of the law, as correctly held in the judgment of this Court in Pt. Rishikesh and Another v. Salma Begum (Smt) [(1995) 4 SCC 718]. ii) Applying the above test, we hold that, on the enactment of the Central Chit Funds Act, 1982, on 19.08.1982, which covered the entire field of “chits” under entry 7 of List III of the Constitution, the Kerala Chitties Act, 1975, on account of repugnancy as enshrined in Article 254(1), became void and stood impliedly repealed. That, on the occupation of the entire field of “chits”, the Kerala Legislature could not have enacted the State Finance Act No. 7 of 2002, inserting Section 4(1a) into the Kerala Chitties Act, 1975, particularly on the failure of the State in obtaining Presidential assent under Article 254(2). iii) That, the Central Chit Funds Act, 1982 though not brought in force in the State of Kerala is still a law made, which is alive as an existing law. By reason of Article 367 of the Constitution, the General Clauses Act, 1897 applies to the repeal. Section 6 of the General Clauses Act, 1897 is, therefore, relevant, particularly Sections 6(b) and 6(c) and consequently, the previous operation of the Kerala Chitties Act, 1975 is not affected nor any right, privilege, obligation or liability acquired or incurred under that repealed State Act of 1975. Thus, after 19.08.1982, the Kerala Chitties Act, 1975 stands repealed except for the limited purposes of Section 6 of General Clauses Act, 1897. If and when the Central Government brings into force the Chit Funds Act, 1982 by a notification in State of Kerala, under Section 1(3), Section 90(2) will come into play and thereby the Kerala Chitties Act, 1975 shall continue to apply only to chits in operation on the date of commencement of the Central Chit Funds Act, 1982 in the same manner as the Kerala Chitties Act, 1975 applied to chits before such commencement.

MVC CASE AND COMPENSATION HIGHLIGHTS

2012-05-11T10:34:00.001-07:00

INCREASE IN INCOME OVER A PERIOD OF TIME EVEN TO FIXED WAGE EARNERS AND SELF EMPLOYED 2012 SC Justice G.S. Singhvi, and Justice Sudhansu Jyoti Mukhopadhaya of Supreme Court of India in the case of Santosh Devi vs National Insurance Co.Ltd.& Ors. Decided on 23 April, 2012 held as follows "We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma’s case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self- employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma’s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. QUOTED CASE LAWS In R.K. Malik v. Kiran Pal (2009) 14 SCC 1, the two Judge Bench while dealing with the case involving claim of compensation under Section 163-A of the Act, noticed the judgments in M.S. Grewal v. Deep Chand Sood (2001) 8 SCC 151,Lata Wadhwa v. State of Bihar (2001) 8 SCC 197, Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176, Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179 and made some of the following observations, which are largely reflective of the philosophy that victims of the road accidents and/or their family members should be awarded just compensation: “In cases of motor accidents the endeavour is to put the dependants/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simply—pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life, etc. The Act provides for payment of “just compensation” vide Sections 166 and 168. It is left to the courts to decide what would be “just compensation” in the facts of a case.” In , Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 another two Judge Bench considered various factors relevant for determining the compensation payable in cases involving motor accidents, noticed apparent divergence in the views expressed by this Court in different cases, referred to large number of precedents including the judgments in U.P. SRTC v. Trilok Chandra (1996) 4 SCC 362, Nance v. British Columbia Electric Railway Co. Ltd. 1951 AC 601, Davies v. Powell Duffryn Associated Collieries Ltd. 1942 AC 601 and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down straightjacket formula under different headings, some of which are enumerated below: “(i) Addition to income for future prospects In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words “actual salary” should be read as “actual salary less tax”). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. (ii) Deduction for personal and living expenses Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. (iii) Selection of multiplier We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

GRANT OR REFUSAL OF INTERIM INJUNCTION IN A CIVIL SUIT

2012-05-01T07:47:00.001-07:00

JUSTICE Dalveer Bhandari, & JUSTICE Dipak Misra of Supreme court of India in the case of A.Shanmugam vs Ariya, Decided on 27 April 2012, has held by restating the case law as pronounced in Maria Margarida Sequeria Fernandes (2012) 3 SCALE 550 , this Court examined the importance of grant or refusal of an injunction in paras 86 to 89 which read as under:- “86. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. In order to grant or refuse injunction, the judicial officer or the judge must carefully examine the entire pleadings and documents with utmost care and seriousness. 87. The safe and better course is to give short notice on injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex-parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. The Court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties. 88. Ordinarily, three main principles govern the grant or refusal of injunction. a) prima facie case; b) balance of convenience; and c) irreparable injury, which guide the Court in this regard. 89. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play vital role.”

WHETHER A LITIGATION CAN BE RE-OPENED AFTER LONG DAYS ?

2012-04-23T21:03:00.000-07:00

M. Anantha Padmanabha Bhat vs Kali Poojarthi And Ors. 2003 (2) KarLJ 176 "Courts will refuse to reopen final orders after the lapse of a considerable period of time. Unless this principle is strictly observed, it will virtually open the floodgates, particularly to mischievous and ingenious applications.................we need to hold once again that there is a doctrine of finality which applies to all proceedings and barring very strong and very exceptional situations, Courts will refuse to reopen final orders after the lapse of a considerable period of time. Unless this principle is strictly observed, it will virtually open the floodgates, particularly to mischievous and ingenious applications such as the one made in the present case. In totality therefore, it is our considered view that even in the year 1992 since 11 years had already passed and Form 10 had been issued much earlier, that the Tribunal would have been justified in having straightaway rejected the application."

CAN YOU GIVE US EQUAL WORK EQUAL PAY CITATIONS

2012-04-23T09:37:00.002-07:00

(a) Sita Devi & Ors. Vs. State of Haryana (1996) 10 SCC 1 wherein it is held that distinction on the basis of educational or technical qualifications is valid. (b) Harbans Lal & Ors Vs. State of HP (1989) 4 SCC 459 holding that discrimination complained must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management. (c) Mewa Ram Kanojia Vs. AIIMS (19890 2 SCC 235 wherein it has been held that even similar duties and functions are not sufficient to hold the claim for equal pay. (d) Federation of All india Customs & Central Excise Stenographs Vs. UOI & Ors. (1988) 3 SCC (e) SC Chandra Vs. State of Jharkhand 2007(10) Scale 209, stressing judicial restraint in interfering with executive decisions or functions has been emphasized. (f) State of M.P. Vs. Ramesh Chandra Bajpai (2009) 13 SCC 635. This judgment holds that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of the quality in matter of pay scales. The Court has to consider factors like the source and mode of recruitment/appointment, qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need etc. Equality clause can be invoked only when there is wholesale identity between the holders of two posts.

WHETHER MUNICIPALITY CAN ALLOT ITS PROPERTY WITHOUT MAKING AUCTION OR TENDER

2012-04-12T05:46:00.003-07:00

NO SAYS SUPREME COURT GUIDELINES In Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh(2011) 5 SCC 29, this Court was called upon to examine whether the Government of Madhya Pradesh could have allotted 20 acres land to Shri Kushabhau Thakre Memorial Trust under the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 read with M. P. Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachanao K Vyayan Niyam, 1975. After noticing the provision of the Act and the Rules, as also those contained in M.P. Revenue Book Circular and the judgments of this Court in S. G. Jaisinghani v. Union of India AIR 1967 SC 1427, Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489, Erusian Equipment and Chemicals Ltd. v. State of W.B. (1975) 1 SCC 70, Kasturi Lal Lakshmi Reddy v. State of J&K (1980) 4 SCC 1, Common Cause v. Union of India (1996) 6 SCC 530, Shrilekha Vidyarthi v. State of U. P.(1991) 1 SCC 212, LIC v. Consumer Education & Research Centre (1995) 5 SCC 482, New India Public School v. HUDA (1996) 5 SCC 510, the Court culled out the following propositions: "What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non- arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution."

IN MVC ACCIDENT CLAIMS PERMANENT DISABILITY TO EARN IS TO BE SEEN RATHER THAN MEDICAL DISABILITY 2011 SC

2011-11-05T10:33:00.000-07:00

READ FULL JUDGMENT

Justice G.S. Singhvi, and Justice Asok Kumar Ganguly in a case of Sanjay Batham vs Munnalal Parihar & Ors. Decided on 1 November, 2011 Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.

MENTAL CRUELTY TO A HUSBAND AS RECOGNISED BY MATERIALS ON RECORD BY SC 2011

2011-10-06T00:14:00.000-07:00

Justice P. Sathasivam, and Justice B.S. Chauhan in Pankaj Mahajan vs Dimple @ Kajal on 30 September, 2011 observed that “It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial law. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated.”

They are:
i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace.
ii. Pushing the appellant from the staircase resulting into fracture of his right forearm.
iii. Slapping the appellant and assaulting him.
iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him.
v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself.
vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and misbehaving with them.
viii. Forcing the appellant to live separately from his parents.
ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises.
x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.
xi. Always quarreling with the appellant and abusing him.
xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant.

All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the respondent-wife towards the appellant-husband.

READ FULL JUDGMENT

AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

2011-02-11T17:54:00.000-08:00

In a case before The Supreme Court Of India, Krishnadevi Malchand Kamathia & ... vs Bombay Enviornmental Action ... Decided on 31 January, 2011 By bench consisting of Justice P Sathasivam, and Justice Dr B.S. Chauhan, It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

CROSS EXAMINATION AND ITS EFFECT IN APPRECIATION OF EVIDENCE

2011-02-10T09:26:00.000-08:00

Sat Paul vs Delhi Administration AIR 1976 SC 294 “It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. ………. the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law………………….. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.”

Ennen Castings Pvt. Ltd. (In Liquidation) vs M.M. Sundaresh And Ors. AIR 2003 Kant 293, JUSTICE N KUMAR Considering the question whether a co-respondent can cross-examine the other respondent, who has given evidence against him observed that:- “The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. The object is to impeach the accuracy, credibility and general value of the evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. It is beyond any doubt the greatest legal engine ever invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.”……….. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to incriminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses, if his co-defendant's interest is hostile to his own…………………..Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross examined that evidence becomes admissible……………. Therefore, it is very clear from the aforesaid passages that it is the settled law that no evidence should be received against one who had no opportunity of testing it by cross-examination ; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant-respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondents, then before the court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the court can act.

Madarbi, W/O Mahaboob Sab vs Mulla Sab Mardan Sab ILR 1996 KAR 1674, Referring a case of PANCHAPPA v. STATE OF KARNATAKA, I.L.R 1989 Karnataka 974 wherein it has been held that any minor discrepancy in the order which does not affect the merits and does not result in miscarriage of justice is to be overlooked. Right to cross-examine the witness is a fundamental right of a party against whom the witness has deposed. If a party is not given an opportunity to cross-examine the witness, then it cannot be said to be a minor discrepancy which does not go to the root of the matter. In such a context, the Court cannot brush it aside as a minor contradiction or minor discrepancy and confirm the order of the Tribunal based on such evidence.

MARY M.D'SOUZA v. MUNICIPAL COMMISSIONER, MANGALORE CITY MUNICIPALITY, 1968(1) Kar.L.J. 90, wherein this Court has held that a plea which has not been raised in the affidavit in support of the Writ Petition cannot be permitted to be raised at the hearing without the leave of the Court.

LEGAL REPRESENTATIVES IN CIVIL LAW

2011-02-10T09:24:00.000-08:00

Ramachandra vs Laxmana Rao AIR 2000 Kant 298, ILR 2000 KAR 2341, Section 146 of the CPC. This provision reads: "146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". On an analytical reading of Section 146, one legal position which clearly emerges is that where any legal proceeding may be taken or an application for a legal proceeding may be made by or against any person, then, that proceeding may also be taken or application for the same may be made by or against any persons claiming under him. This provision deals with legal proceedings by or against representatives of the parties to a dispute or to a decree or final order of any competent Court. Its operation is general in nature, except that it is circumscribed by the beginning saving clause "save as otherwise provided by this Code or any law for the time being in force".

The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company Limited, AIR 1955 SC 376 has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said: "The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".

Karnataka High Court has held in Hajaresab -v.- Udachappa, since deceased by his L.Rs., and others. ILR 1984 KAR 900 " Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's Case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison cannot be enforced in the case of the legal representatives at all."

No oral testimony can be considered satisfactory or valid unless it is tested by cross-examination

2011-02-10T09:18:00.001-08:00

AIR 1989 SC 162 Supreme Court in the case of Modula India v. Kamakshya Singh Deo, and has held as under.- "It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute". Further, it held.- "We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But, we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case"…… Supreme Court had to say.- "Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court "shall pronounce judgment against him or make such order in relation to the suit as it thinks fit". It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed".

CONSEQUENCES OF NOT FILING WRITTEN STATEMENT

2011-02-10T08:08:00.000-08:00

Basalingappa Chinnappa Goudar And Ors. vs Shantavva And Ors ILR 2002 KAR 260, 2001 (6) KarLJ 460 “In a suit the defendant has the right to show that the case pleaded by the plaintiff is false or cannot be acted upon and in addition to that he can put forth his defence to defeat the claim of the plaintiff. By not filing the written statement he loses his right to put forth his defence to defeat the claim of the plaintiff only but he does not lose his right to demolish the case of the plaintiff by cross-examination. The defendant by cross-examination of the plaintiff and his witnesses can demolish the case of the plaintiff and also address arguments on the basis of the evidence led by the plaintiff, and also make submission on law and satisfy the Court that on the material on record, the plaintiffs case cannot be accepted and no decree can be passed in favour of the plaintiff……….. However, it is made clear that the defendant would not be entitled to lead any evidence nor his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs case, and he be permitted to project his defence either directly or indirectly or in the form of suggestions to the plaintiffs witnesses.”

RIGHT OF CROSS EXAMINATION

2011-02-10T08:03:00.000-08:00

In STATE OF MADHYA PRADESH v. CHINTAMAN SADASHIVA WAISHAMPAYAN, AIR 1961 SC 1623 the Supreme Court while finding flaw in the procedure of the enquiry held thus: "6..... Thus, it was of very great importance for the defence to cross-examine these two witnesses, and for that: purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge……….. 10. It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice."

AIR 1977 SC 170 the Apex Court has held that: "A party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth."

AMENDMENT OF WRITTEN STATEMENT & FILING OF ADDITIONAL WRITTEN STATEMENT

2011-02-10T07:40:00.001-08:00

P.A. Jayalakshmi VS H. Saradha & Ors. JUSTICE S.B. Sinha JUSTICE Deepak Verma, New Delhi; July 21, 2009, Code of Civil Procedure, 1908: Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional pleadings - Suit

for partition - Application filed by defendant-appellant seeking leave to file additional written statement - Rejected by Courts below - Justification of - Held: On facts, justified - The application was filed at a much belated stage - Statutory limitations brought about by reason of amendments in CPC to be kept in mind. Respondents filed suit for partition in the year 2004. Appellant filed written statement in 2006 and on 1-3-2007, filed application purportedly in terms of Or.VIII, r.9 CPC seeking leave to file additional written statement with regard to a Will in regard to the suit property, which was not mentioned in the written statement. By that time examination of one witness was over. The Will was purportedly executed in 1993 and it was urged by the appellant that she discovered the existence of Will only on 5-2-2007. The said application was dismissed by the Trial Court. Revision petition filed by appellant was dismissed by the High Court. It was contended that the Courts below failed to take into consideration that in effect and substance, appellant's application should have been treated to be one for amendment of written statement as envisaged under Order VI, r.17 CPC and not one for leave to file additional pleadings as envisaged under Or.VIII, r.9 thereof; that the appellant having raised a contention that she discovered the existence of Will only on 5-2-2007, even the requirements of the proviso appended to

Or.VI, r.17 CPC must be held to have been satisfied and that by reason of the said application, the appellant did not bring about any change in the principal contention raised in her written statement as the said Will was sought to be brought on record wherefor requisite pleadings were necessary only to support her case that the property in question was not a joint family property. Dismissing the appeal, the Court held, With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order VI Rule 17 CPC. Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 CPC provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.

In the present case, for reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order VI, Rule 17 of CPC. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order VIII, Rule 9 of CPC . At no point of time, a contention was raised that she wanted to amend her pleadings.

Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. Noticeably one of the plaintiffs was examined on 1.3.2007. Despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them.

WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

2011-02-10T07:37:00.001-08:00

The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu, July 07, 2009. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.

COURT CANNOT IMPOSE COSTS EXCEEDING ITS LIMITS UNDER CPC AND ALSO IT CANNOT DIRECT THE COSTS TO BE PAID TO LEGAL SERVICES AUTHORITY

2011-02-10T07:36:00.000-08:00

The Hon’ble Supreme court of India in ASHOK KUMAR MITTAL VS. RAM KUMAR GUPTA & ANR. 2009(1) SCALE 321 , Justice R V Raveendran, Justice J M Panchal, New Delhi; January 9, 2009 “Exemplary costs - Imposition of - Courts should not exceed the limitations placed by CPC in this regard - Principles and practice relating to administrative law matters cannot be imported mechanically to civil litigation governed by the Code - Levy of huge costs in selected matters made payable to legal Services Authorities or non-party charitable organizations should be avoided - As regards the costs, courts should not exceed or overlook the limitations placed by the Code of Civil Procedure, 1908 with reference to costs in civil litigation. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code. On the aspect of the recipient of the costs, once the High Court held that costs had to be paid to the State, it should not have directed payment of the costs to the High Court Legal Services Committee, which being a statutory authority under the Legal Services Authorities Act, 1987, is not the 'State' that spends money on providing judicial infrastructure. Levy of huge amounts as costs in selected cases, made payable to Legal Services Authorities, may invite adverse comments and evoke hostility to legal services in general. The Court has also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.”

CLARIFICATIONS REGARDING COPY RIGHT QUERIES AND SUGGESTIONS RECIEVED

2011-02-05T04:40:00.001-08:00

Regarding copyright queries being asked by many I quote Supreme court Judgement observations herein below in the case of Eastern Book Company & Ors. Vs D.B. Modak & Anr. AIR 2008 SC 809, the Hon’ble Supreme court headed by Justice B.N. AGRAWAL & Justice P.P. NAOLEKAR observes in the following words and explains in detail and clarifies the position of law as to the copyright in Judgements of courts “In the absence of any agreement to the contrary, the Government shall be the first owner of the copyright in the judgments of the Supreme Court, the same being a Government work in terms of Section 2(k) of the Act. …………… The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited…………………. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author's work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. ………………………... To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in the Report, SCC, some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. ……………………….. It is clarified that the decision of this Court would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments……………………… Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of the Report, SCC, would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. …………… when the editor has put an input whereby different Judges' opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in the Report, the appellants have a copyright and nobody is permitted to utilize the same. …………….. It is further directed that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like `concurring', `partly dissenting', etc. on the basis of reported judgments in SCC.”

WHETHER SECOND WIFE SIBLINGS OF HINDU CLAIM PROPERTY RIGHTS

2011-01-29T23:01:00.000-08:00

Yes only with their parents property and not with any ancestral property. In Jinia Keotin and Others v Kumar Sitaram Manjhi and Others, (2003)1 SCC 730 “The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27.5.1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only.”

FOR A CLARIFICATION SOUGHT ON DUTIES OF AN ADVOCATE - KARNATAKA HIGH COURT JUDGEMENT QUOTE

2011-01-09T09:41:00.000-08:00

Hon’ble Justice: Ajit J. Gunjal, J. in a judgement of F. Moily Vs. Lokayuktha, State of Karnataka, Bangalore and Others, Reported in 2010 (5) KarLJ 127 SOURCE: KARNATAKA HIGH COURT WEBSITE “Indeed as to the duty cast on the petitioner as well as the Counsel appearing for the parties is concerned, Hon'ble Mr. Justice MN Venkatachalaiah, former Chief Justice of India, has this to say: "The subject of traditions of the Bar, has quite unfortunately come to be associated with certain indelicate assumptions than the best traditions of the Bar are myth and illusions of by gone times and nostalgia of 19th century. I venture more hopefully to think that the great traditions of Bar have sustained the profession of law which every civilised society cherishes as a part of very valuable inheritance. The high traditions are spring of strength and sustenance in its days of trial. The profession of the lawyer is perhaps the single most powerful for the protection of the liberty of man and the decision of civilised living". Advocates are the inheritors of tradition of scholarship, wisdom, dignity, courage and service. The Advocate by his tradition is under several duties. They comprise of duty to the Court, duty to the profession, duty to the opponent, duty to the client, duty to the self and duty to public and State. The duty of an Advocate to the Court is also equally important. This duty encompasses and comprises courtesy and respect to the Court. An Advocate can differentiate without being abject, independent and fearless without being disrespectful, firmness can co-exist with an equal amount of grace and politeness. Section 49 of the Advocates Act, 1961 would speak about the General Power of the Bar Council of India to make certain rules. For the present, we are concerned with Section 49(1)(c) of the Act, which would speak about the standard of professional conduct and etiquette to be observed by the Advocates. Standard of Professional Conduct and Etiquette is to be found in Chapter 2 of Part VI of Bar Council of India Rules which is framed under Section 49(l)(c) of the Advocates Act read with the proviso would clearly indicate as to the duty of an Advocate towards the Court. We are more concerned with item No. 4 of Section 1 which would read as under. "An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing Counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in the Court". The Apex Court in the case of M.Y. Shareef and Another v Hon''ble Judges of the Nagpur High Court and Others, AIR 1955 SC 19; has observed thus: "This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that Counsel who sign applications or pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a Counsel to his client to take an interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications".

BUILDING PURCHASE IN BANGALORE WHAT DOCUMENTS WE HAVE TO SEE

2010-08-19T04:39:00.000-07:00

Site in the name of the mother, she was a teacher, she has bought the site with her own money, she has 3 sons all are working and living in US., The building was constructed using 2nd son's NRI money. Do the sons have rights in this property? Mother is selling the property, Does she has all the rights to sell the property? Do we need get some sort of an NOC from sons? like Ratification Deed or so? Is it needed ? Husband is alive. we are planning to buy this property(individual house 12 years old) , what are the legal documents we need to look for in this scenario. Property is in Bangalore, Both mother and father are senior citizens.

ADVICE:- Under Hindu Succession Act Property of female Hindu is her absolute property. In your case it may be possible that they may take a stand that, it is treated as Hindu Joint Family property, created out of joint contributions of all. If there is any evidence as to contribution of her son then take NOC from that son that the contributions he made is out of love and affection and not as a Joint Family Property.
Regarding Documents Required to purchase a property in bangalore depends upon each case to trace its title.
1. RTC of the land in which the site comes (From 1968-present day). This is needed to verify whether land is affected from any PTCL act provisions, or from any Land reforms provisions etc. If such documents does not disclose preliminary title then Index of lands and other documents are required. Hence i said it all depends upon each case.
2. The DC conversion certificate duly verified from the concerned office.
3. The layout approval from the planning authority.
4. Building Plan approval from the local authority.
5. The upto date tax paid reciept from the local municipal bodies. And also khatha extract.
6. Form 3/ Form 10/ Form 9 depending upon particular cases.
7. Encumbrance on the land which can be best advised after verifying records.
8. Affidavit from her sons stating the land and building is her self acquired property.
9. If the property comes beside railway line, or National Highways then NOC from Railways/ NHAI is must before building constructions.
10. The preliminary title to be verified because bangalore is witnessing so many land frauds. (To satisfy -land is not govt land)
ETC
For Registration requirements of documents are simple but for legal verification of title it is laborious task depending on each case.

HINDU SECTION ACT SECTION 14. Property of a female Hindu to be her absolute property
(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

INJUNCTION SUIT AND DEFENDANT LEGAL REPRESENTATIVES

2010-08-19T04:10:00.000-07:00

can we bring legal heir's of deceased defendant in bare injunction suit? if no, is there any citation ruled by any state's courts?

Ramachandra vs Laxmana Rao AIR 2000 Kant 298, ILR 2000 KAR 2341, Section 146 of the CPC. This provision reads: "146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". On an analytical reading of Section 146, one legal position which clearly emerges is that where any legal proceeding may be taken or an application for a legal proceeding may be made by or against any person, then, that proceeding may also be taken or application for the same may be made by or against any persons claiming under him. This provision deals with legal proceedings by or against representatives of the parties to a dispute or to a decree or final order of any competent Court. Its operation is general in nature, except that it is circumscribed by the beginning saving clause "save as otherwise provided by this Code or any law for the time being in force".

The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company Limited, AIR 1955 SC 376 has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said: "The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".

Karnataka High Court has held in Hajaresab -v.- Udachappa, since deceased by his L.Rs., and others. ILR 1984 KAR 900 " Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's Case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison cannot be enforced in the case of the legal representatives at all."