Thursday, 29 January 2015

Appreciation of evidence has to be realistic

The plaintiffs produced seven witnesses, who
specifically stated that the land in question was being used for
burial of children and also deposed that children from their
family were also buried there.
The counsel for the appellants vehemently submitted that
none of the witnesses gave out names of the children etc. It has
to be remembered that the suit pertained to burial place for
children, which essentially is utilized for burial of children, who
are generally born premature and cannot survive and are of very
tender age and, therefore, the same is not a very common
phenomena which is evidence from the statement of witnesses,
who have given out instances in past only. It is also an aspect of
common knowledge that such premature children and/or children
of tender age are not even given a name before they succumb
and, therefore, to expect the witnesses to give out the names is
wholly baseless and, absence of which, cannot render their
statements unreliable.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

S.B. CIVIL SECOND APPEAL NO.155/2013
LRs of Baktaram & Ors.
vs.
Vijay Singh & Ors.
Date of Judgment :: 07th October, 2014

HON'BLE MR. JUSTICE ARUN BHANSALI
Read original judgment here; click here
Citation; AIR2015(NOC)43 RAJ
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Whether in eviction suit court can permit adding of party who is not landlord of tenant?

 It may be pointed out that it is well-settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if the succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputes, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In LIC v. India Automobiles & Co, (1990) 4 SCC 286 (SCC pp. 300-02, para 21) this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bona fide the Court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case.

Thus, the major issue before the learned trial court in a suit for eviction is whether a relationship of landlord and tenant exists between the parties or not? In case the tenant were to deny the ownership, then incidentally, the trial court is permitted to consider the issue of ownership. But, nonetheless, an issue of ownership is not really germane to the entire controversy. Moreover, in the case of Vimla Devi (supra) this court had clearly held that impleadment of a party should not be allowed if it leads to enlarging of a scope of inquiry in a suit.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR

JUDGMENT

Prakash Chand Papriwal & Anr.
 Versus
Pradeep Kumar Vaid & Ors.

SB Civil Writ Petition No.14022/2009 under Articles 226 & 227 of the Constitution of India against the order dated 26.10.2009 passed by the Civil Judge (J.D.) Kishangarh, Dist. Ajmer

Date of Judgment     ::  07/10/2014

Present
HON'BLE MR. JUSTICE R.S. CHAUHAN
Read original judgment here; click here
Citation;AIR 2015(NOC)40 Raj
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Whether suit for specific performance of contract can be filed before expiry of period envisaged by agreement of sell?

As regards the launching of the original suit pre-mature, the law is settled in this regard. Lucknow Bench of Hon’ble Allahabad High Court in case of Harihar Prasad and Others v. Udaibir Singh & Another, 1978 AWC 79, relying on certain other judgments inasmuch as the Privy Council also, held that suit for specific performance of the contract under Section 9 of the Specific Relief Act could not have been filed before the expiry of period envisaged by agreement because the cause of action arises only after the time for performing the contract expires. So, in the instant controversy, the plaintiffs could have filed the suit only after 1.3.2007 and not before.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SECOND APPEAL NO. 10/2014
Mohd. Aslam ……… Defendant/Appellant
Versus
Rais & two Others ………. Plaintiffs/Respondents
Citation; AIR2015 9(NOC) 31 UTR
Read original judgment here; click here
Dated;September 24, 2014
Hon’ble Servesh Kumar Gupta, J.
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Whether execution application can be transferred under S 24 of CPC?

The Court has carefully examined the citations
and relevant part thereof cited by the learned Advocate
for the respondent and is not able to agree with the
submissions made by the learned Advocate for the
respondent. This Court is of the opinion that “other
proceedings” definitely includes execution proceedings.
The Court does not agree that it is only for the purpose
of trial when such proceeding is pending that Section 24
can be resorted to because next to the word, “for trial”
is “or disposal” and therefore, submissions made by the
learned Advocate for the respondent find no favour with
this Court.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR TRANSFER) NO. 520 of 2014

HONOURABLE MR.JUSTICE RAVI R.TRIPATHI

SIMABEN MANJIBHAI RUPANI....Applicant(s)
Versus
HARESHBHAI VALJIBHAI MORADIYA....Opponent(s)


Date : 07/07/2014
Citation; AIR 2015(NOC)75 Guj
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