Wednesday, 22 January 2020

Whether court should issue notice in domestic violence proceeding if there are not specific allegations of domestic violence?

 When acts of domestic violence is alleged, before issuing
notice, the court has to be prima facie satisfied that there have been
instances of domestic violence.
9. In the present case, the respondent has made allegations of
domestic violence against fourteen appellants. Appellant No.14 is
the husband and appellants No.1 and 2 are the parents-in-law of
the respondent. All other appellants are relatives of parents-in-law
of the respondent. Appellants No.3, 5, 9, 11 and 12 are the
brothers of father-in-law of the respondent. Appellants No.4, 6 and
10 are the wives of appellants No.3, 5 and 9 respectively.

Appellants No.7 and 8 are the parents of appellant No.1. Appellants
No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10
are the residents of State of Rajasthan and appellants No.11 to 13
are the residents of State of Gujarat. Admittedly, the matrimonial
house of the respondent and appellant No.1 has been at Chennai.
Insofar as appellant No.14-husband of the respondent and
appellants No.1 and 2-Parents-in-law, there are averments of
alleging domestic violence alleging that they have taken away the
jewellery of the respondent gifted to her by her father during
marriage and the alleged acts of harassment to the respondent.
There are no specific allegations as to how other relatives of
appellant No.14 have caused the acts of domestic violence. It is
also not known as to how other relatives who are residents of
Gujarat and Rajasthan can be held responsible for award of
monetary relief to the respondent. The High Court was not right in
saying that there was prima facie case against the other appellants
No.3 to 13. Since there are no specific allegations against
appellants No.3 to 13, the criminal case of domestic violence
against them cannot be continued and is liable to be quashed.



Dated:January 22, 2020.
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Monday, 20 January 2020

Whether obstructionist notice is to be dismissed if obstructionist is not claiming under judgment debtor?

 In order to appreciate the contention of Mr. Kotwal, it is necessary to refer to the provisions of Order 21, Rule 97, 99 and 103 of the Civil P.C. Rule 97 provides that where the holder of a decree for possession of Immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall investigate into the matter. This right is conferred, either on the decree-holder himself or on an auction purchaser. It is not conferred on a purchaser by a private treaty. We merely wish to point out that the present plaintiff could not have maintained the application under the provisions of Order 21, Rule 97. It may none-the-less be that to the extent to which Watave was bound by such an order, private purchaser may also be bound by it, but for that purpose we shall consider the scope of the Order, Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. This rule makes it clear that in investigating the matter under Rule 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not under the judgment-debtor. If he was (not?) claiming under the judgment-debtor he may be claiming, either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court has in that event to dismiss the application under Rule 97. The Court is not concerned to see in what title the obstructionist was claiming. 

A.F.A.D. No. 1197 of 1962

Decided On: 03.04.1970

Ganesh Narayan Kulkarni Vs.  Ganesh Ramchandra Joshi and Ors.

Hon'ble Judges/Coram:
J.L. Nain and D.G. Gatne, JJ.

Citation : AIR 1971 Bom 16

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Whether cross examination should be restricted to what witness has stated in his examination in chief?

In Yeshpal's case (Supra) it has been observed that,
“While Courts will not ordinarily interfer with the proper exercise of the
right of cross-examination the Courts have the power and authority to
control the cross-examination of a witness”.
This Court is not agreeing with the submission by learned Advocate
for petitioners that, the Court cannot control the cross-examination
or he has free hand at the time of cross-examining the witness of
the prosecution; but then agree to the submission that the crossexamination
need not be restricted to what the witness has stated in
his examination-in-chief. A balance has to be struck here while
issuing directions to the learned Additional Sessions Judge that he
has to decide the relevancy of the question which he may get
explained from the learned advocate for the accused orally and then
allow him to put the said question to the witness. On any count

learned Additional Sessions Judge will not be justified in entirely
putting the shutter down while disallowing of the questions and
asking the defence advocate to restrict himself while crossexamining
P.W.18 to the post mortem examination report Exhibit
216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore,
again clarified that neither the learned advocate for the accused has
unfettered right to put any question to the witness in the crossexamination
but at the same time the learned Additional Sessions
Judge shall also not restrict him in putting questions in the cross to
the above referred documents only. There might be certain
questions which would be beyond those documents and as an expert
they are required to be elucidated from him. No straight jacket
formula can be laid down as to what should be permitted and what
should not be permitted as it depend upon the question that would
be put and the relevancy and admissibility of the same and / or of
the admissibility will have to be decided at that time. Definitely the
learned Additional Sessions Judge is guided by the procedure laid
down in Bipin Panchal’s case (Supra), and it is specifically laid down that,
it may be advantages for the Appellate Court in future. He has to
bear those advantages which have been laid down in para No.15 of
the case, in mind while recording the evidence.


 Sanjay Shankar Bhalkar, Vs The State of Maharashtra. 


Dated  : 13-01-2020.
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Sunday, 19 January 2020

What is duty of first appellate court while deciding first appeal?

The Hon'ble Apex Court in Santosh Hazari Vs. Purushottam Tiwari (Deceased) by L.Rs. [MANU/SC/0091/2001 : (2001) 3 SCC 179] has observed thus:-

".......... While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact (See Madhusudan Das v. Narayanibai [MANU/SC/0147/1982 : AIR 1983 SC 114]. The rule is--and it is nothing more than a rule of practice----than when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature abut the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his pinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [MANU/SC/0002/1950 : AIR 1951 SC 120]). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code......"


Second Appeal No. 0794 of 2017

Decided On: 04.06.2019

Bhaurao Vs.  Ravsaheb and Ors.

Hon'ble Judges/Coram:
Vibha Kankanwadi, J.

Citation: 2020(1) MHLJ 348
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