Sunday, 22 May 2022

Is it necessary to obtain permission to file a written statement after setting aside an exparte order?

 The order passed by the learned Trial Court condoning the delay and setting aside the exparte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the exparte

decree and restoring the suit to file, defendant Nos. 2 and

3 cannot be permitted to file the written statement.

Reliance is placed upon the decisions of this Court in the

case of Sangram Singh (supra) and Arjun Singh (supra).

However, it is true that as per the law laid down by this

Court in the case of Sangram Singh (supra) and Arjun

Singh (supra) when an exparte decree is set aside and the

suit is restored to file, the defendants cannot be relegated

to the position prior to the date of hearing of the suit when

he was placed exparte. He would be debarred from filing

any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in

the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the exparte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the expartedecree is set aside and the suit is restored to file and even

as per the decisions of this Court in the case of Sangram

Singh (supra) and Arjun Singh (supra) the defendants

cannot be relegated back to the position prior to the date

of hearing of the suit in that case also, it should have been

left to the learned Trial Court to consider the prayer of

defendant Nos. 2 and 3 whether to allow them to file

written statement or not, which was also prayed in CMA

No. 31/2018.

As observed hereinabove, there was no order passed by

the learned Trial Court on the specific prayer made by

defendant Nos. 2 and 3 to allow them to file written

statement. The learned Trial Court while passing order

dated 05.12.2019 condoned the delay and set aside the exparte

decree and the said order of condonation of delay and setting aside the exparte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is

unsustainable and the issue/question whether defendant

Nos. 2 and 3 may be allowed to file their written statement

or not, shall have to be remanded to the learned Trial

Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3641 OF 2022

Sudhir Ranjan Patra (Dead) thr. LRs. & Anr. Vs Himansu Sekhar Srichandan & Ors.

Author: M. R. Shah, J.

Dated: 17th May, 2022

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Supreme court: Hindu Widow is absolute owner of property owned by her husband which is in her possession

Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is "a pre-existing right", which existed under the Shastric Hindu law long before the passing of the 1937 or the 1946 Acts. Those Acts merely recognised the position as was existing under the Shastric Hindu law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. {Para 24}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5894 of 2019

Decided On: 18.05.2022 

 Munni Devi (Dead) thr. L.Rs. and Ors. Vs. Rajendra (Dead) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

Ajay Rastogi and Bela M. Trivedi, JJ.

Author: Bela M. Trivedi, J.

Citation: MANU/SC/0665/2022

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Whether Magistrate can grant police protection to a person if a person is feeling danger from the police?

 In this situation all what we can do is to make the observation that it is open to the appellant to file complaint or complaints before the Magistrate concerned in which necessary allegations or accusations of the various offences committed against him can be described. If any such complaint is filed before a Magistrate the same shall be looked into and the procedure required by law shall be resorted to by the Magistrate concerned. In order to ensure personal protection for the appellant we permit him to make an application before the Magistrate concerned for affording police protection to him. If the Magistrate is satisfied that appellant must be given police protection for the effective prosecution of his case the Magistrate shall pass appropriate orders thereon.

In exceptional cases, the magistrate can exercise power to grant such protection.

Supreme Court of India
Pinkibasra vs State Of Punjab And Ors. on 13 January, 2000
Equivalent citations: JT 2000 (2) SC 467, (2000) 9 SCC 46
Author: K Thomas
Bench: K Thomas, M Shah
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Can a person selling Gutka or Pam masala prosecuted for an offence U/S 328 of IPC be released on anticipatory bail?

Having been found with the contraband articles, such as, Jarda, Pan Masala, Flavoured Supari, Scented Tobacco and Mava in contravention of the notification No. FSSA/Notification/901/7 dated 19.7.1919 and Notification No. FSSA/Notification/901/7 dated 15.7.2020 issued under Section 30(2)(a) of the Food Safety Standard Act, 2006 (hereinafter referred to as "FSS Act" for sake of brevity) by the Commissioner of Food Safety Maharashtra State, various FIRs under Sections 188, 269, 271, 272, 273, 307, 328, 353 of IPC and Section 59 of the FSS Act, came to be registered.

 In the matter of State of Maharashtra vs. Syed Hasan Syed Subhan MANU/SC/1021/2018 : 2018 AIR (SC) 5348 the Honourable Apex Court has clearly held that the non-compliance of the prohibitory order which prohibits transportation and sale of Ghutka and Pan Masala, would entail a prosecution under Section 55 of the FSS Act, but it has been held that the provisions of the Indian Penal Code can also be invoked and applied. The Apex Court did not find favour with the findings of the High Court, which had held that the non-compliance of the notification issued by the Food Safety Commissioner can be penalized only by imposing fine mentioned under Section 55 of FSS Act and no complaint under the Indian Penal Code could have been preferred by the Food Security Officer for violation of the prohibitory order. While setting aside the said finding, Their Lordships of the Apex Court held that the High Court was wrong in holding that the action can be initiated against the defaulters only under Section 55 or under Section 68 of the FSS Act, for adjudication.

21. This brings me back to the requisites of Section 328 of IPC. On closer scrutiny of Section 328, it is obvious for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. Simply stating, the accused may achieve and complete the act by himself or by means of another. It is nowhere alleged that the applicants were primarily responsible for administering poison. It is also not the case that applicants had helped by aid of third person or by involving third person, who had authority to do so, caused it (poisonous substance) to be used by others. It would be premature to say that act of storage or transporting, as is alleged against the applicants, should be construed as fulfilling the requisites of Section 328 of IPC. There is need to guard against this hard-headed view, which is canvassed by the learned APP, on a sheer contemplation that the act of applicants would tantamount to an act of "administering" or "causing to be taken". The ratio laid down in the case of Joseph Kurian (supra) is all pervasive qua the cases in hand and applies with full rigour.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Anticipatory Bail Application Nos. 944, 1168, 1183,  of 2021

Decided On: 30.09.2021

 Munjabhau Manchakrao Rokde and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.G. Bisht, J.

Citation: MANU/MH/4640/2021

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