Sunday, 17 February 2019

Whether court should permit production of additional evidence after disposal of appeal?

 Now the question that falls for consideration is whether after closure of a lis, the provision of Order XLI, Rule 27 can be invoked in order to introduce - which, according to the petitioner is - additional evidence. For the purpose of answering this question, we need to have a look at Order XLI, Rule 27 of the Code of Civil Procedure which is set out hereinbelow in its entirety:-

"Production of additional evidence in Appellate Court.- The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

5. Even a plain reading of the provision of law - as quoted above - clearly reveals that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to "pronounce judgment" (Emphasis supplied by us) or for any other substantial cause, it may allow such evidence or document to be produced or witness to be examined. In the facts of the instant case, however, "judgment" of the Appellate Court has already been "pronounced" on 18th May, 2018 and even if there was "any substantial cause", such cause was required to be present only when the lis was pending. There is no scope for introduction of additional evidence at this belated stage when no lis is pending. If one has to accept the contention of the petitioner that even at this stage, additional evidence can be introduced before the Appellate Court, it would simply mean that a litigant can be allowed to keep his/her lis pending indefinitely before a Court of law by this process. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity. The closure of a lis, therefore, is inevitably warranted and this is what has happened in the facts of the instant case upon pronouncement of the judgment dated 18th May, 2018, leading to the appellate decree. We, therefore, have no manner of doubt whatsoever that at this belated stage, production of additional evidence or allowing witness to be examined in order to prove the petitioner's contentions is impermissible and cannot be allowed. Consequentially, there is no scope for review of our judgment and order dated 18th May, 2018.

IN THE HIGH COURT OF CALCUTTA

RVWO No. 27 of 2018

Decided On: 30.11.2018

Mahavir Properties Pvt. Ltd. Vs. Sri Sri Iswar Gajalakshmi Mata Thakurani and Ors.

Hon'ble Judges/Coram:
Biswanath Somadder and Moushumi Bhattacharya, JJ.

Citation: AIR 2019 Cal 1
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Whether it can be presumed that sale deed was validly executed if it is registered?

 Sale deed dated 21.12.1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and Ors. v. Birbal and Ors. MANU/SC/8139/2006 : (2006) 5 SCC 353, it was held as under:

27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.

The above judgment in Prem Singh's case has been referred to in Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and Ors. MANU/SC/0442/2009 : (2009) 12 SCC 101.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1007 of 2013

Decided On: 14.12.2018

 Jamila Begum (D)  Vs. Shami Mohd. (D) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:
R. Banumathi and Indira Banerjee, JJ.

Citation: AIR 2019 SC 72
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When previous bad character of accused is relevant in criminal prosecution?

Sections 54 of the Indian Evidence Act, 1872 prohibits the use of previous bad character evidence except when the convict himself chooses to lead evidence of his good character. The implication of this clearly is that the past adverse conduct of the convict ought not to be taken into consideration for the purposes of determining the quantum of sentence, except in specified circumstances.

60. There are exceptions to this general rule. For example, Section 376-E of the Indian Penal Code provides as follows:

376E. Punishment for repeat offenders.-Whoever has been previously convicted of an offence punishable Under Section 376 or Section 376-A or Section 376AB, or Section 376D or Section 376DA or Section 376DB and is subsequently convicted of an offence punishable under any of the said Sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.

61. Similarly, Section 16(2) of the Prevention of Food Adulteration Act, 1954 provides as follows:

16. Penalties.-

(1) xxx xxx xxx

(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

62. Finally, it is worthwhile to refer to Section 75 of the Indian Penal Code which provides for enhanced punishment for certain offences under Chapter XII or Chapter XVII of the Indian Penal Code after previous convictions. This Section reads as follows:

75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction.-Whoever, having been convicted,-

(a) by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years.

63. The scope of Section 75 of the Indian Penal Code was discussed in the 42nd Report of the Law Commission of India in the following words:

[This] is an attempt to deal with the problem of habitual offenders and recidivism. Other penal systems also have tried to grapple with this complex problem, but nowhere have the attempts met with marked success, perhaps because the causes of crime are themselves complex. Because the previous sentence has failed both in its object of reforming the offender and in its object of deterring him from crime, the law, as a measure of last resort, concentrates on protecting society from the offender by sending him to jail for a longer term than before.

64. It is worthwhile to note that the three provisions of law quoted above deal with instances where there is a prior conviction and do not deal with the pending trial of a case involving an offence. Therefore, while it is possible to grant an enhanced sentence, as provided by statute, for a recurrence of the same offence after conviction, the possibility of granting an enhanced sentence where the statute is silent does not arise. Consequently, it must be held that in terms of Section 54 of the Indian Evidence Act the antecedents of a convict are not relevant for the purposes of awarding a sentence, unless the convict gives evidence of his good character.

IN THE SUPREME COURT OF INDIA

Review Petition (Criminal) Nos. 306-307 of 2013 in Criminal Appeal Nos. 145-146 of 2011

Decided On: 12.12.2018

Rajendra Pralhadrao Wasnik  Vs.  State of Maharashtra

Hon'ble Judges/Coram:
Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ.


Citation: AIR 2019 SC 1
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Whether issues with regard to accord and satisfaction of claims or existence of dispute would be decided by Arbitral Tribunal?

Where there is contestation or the decision rendered by the General Manager leaves scope for argument as to whether

the claims lodged by a Contractor can be categorized as Notified Claims is best left to the Arbitral Tribunal. In other words, except for the situation where there is no doubt that the claims were not lodged with the Engineer and the Site Engineer as required under Clause 6.6.1.068 read with 6.6.3.069, the matter would have to be left for resolution by Arbitral Tribunal. II) Aspects with regard to accord and satisfaction of the claims or where there is a dispute will also have to be left to the Arbitral Tribunal. The position in law in this regard remains the same both pre and post amendment brought about in the 1996 Act after 23.10.2015. III) After the insertion of Subsection (6A) in 11 of the 1996 Act the scope of inquiry by the Court in a Section 11 petition, (once it is satisfied that it has jurisdiction in the matter) is confined to ascertaining as to whether or not a binding arbitration agreement exists qua the parties before it which is relatable to the disputes at hand.
IV) The space for correlating the dispute at hand with the arbitration agreement is very narrow. Thus, except for an open and shut case which throws up a circumstance indicative of the fact that a particular dispute does it not fall within the four corners of the arbitration agreement obtaining between the parties the matter would have to be resolved by an Arbitral Tribunal. In other words, if there is contestation on this score, the Court will allow the Arbitral Tribunal to reach a conclusion on way or another. This approach would be in
68 Supra 9, Page 8 69 Supra 7, Page 8

keeping with the doctrine of Kompetenz Kompetenz; a doctrine which has statutory recognition under Section 16 of the 1996 Act. 
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment pronounced on: 08.02.2019
 ARB.P. 115/2018

NCC LIMITED Vs   INDIAN OIL CORPORATION LIMITED 

CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
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