Monday, 17 January 2022

Can the court ask the defendant to make his final argument before the plaintiff?

 In the present case, I am concerned with Rule 2, which lays down the general rule that the one, which has right to begin, must "address the Court generally on the whole case". It further provides that the party beginning may then "reply generally on the whole case". A careful reading of Rule 2 clearly shows that the said Rule proceeds on the principle that the party, which has involved in the evidence first must address the Court last. Thus, on a plain reading of the provisions of the said Rule, it is the defendant, who has to open the argument first.

9. As already indicated, Rule 2 of Order 18 clearly stipulates that the party giving the evidence first has the right to address the Court last and the defendant having led his evidence last, he is required to address the Court first.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.P. SHAH, J.

Gajanan Dhondu Dalvi Vs. Trishul Construction Company & Ors.

Civil Revision Application No. 45 of 1995

9th February, 1995

Citation:  1996(3) ALL MR 167

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Saturday, 15 January 2022

Whether Small cause court can entertain a suit if tenant challenges notice issued by Municipal Corporation U/S 53 of MRTP Act?

  But, if it is held that section 53(3) of the MRTP Act was the remedy available to respondent No.1, it would mean that on an application moved by respondent No.1, the Competent Authority could either withdraw the notice or permit retention of only some part of the premises or the application would stand rejected. In either case, it would directly impinge upon the protection available to respondent No.1 as a tenant under the provisions of the Rent Control Act. If the Competent Authority would grant permission to retain only some portion of the premises, it would clearly impinged upon the rights of respondent No.1 as a tenant to continue in possession of the entire premises. This would lead to a situation where the original defendant No.1- landlord would successfully circumvent the provisions of the Rent Control Act to get rid of respondent No.1. Even otherwise, this would lead to a situation of foisting jurisdiction on the Competent Authority under the MRTP Act, regarding protection available to tenants under the Rent Control Act, which cannot be contemplated. It is in this context that respondent No.1 is justified in pleading before the Small Causes Court that the action of the  defendants is unsustainable, as it amounts to denying respondent No.1 the protection available under the Rent Control Act. Therefore, the contentions raised on behalf of the revisional applicants on the basis of section 53 of the MRTP Act cannot be accepted. {Para 22}

23. Although, a perusal of merely the prayer clause in the suit filed by respondent No.1 at first blush, may give an impression that such a prayer cannot be made before the Small Causes Court in the face of the bar contained in section 149 of the MRTP Act, a proper appreciation of the pleadings in the plaint clearly demonstrates that the Small Causes Court can certainly exercise jurisdiction to consider the grievance raised by respondent No.1. The contention raised on behalf of the revisional applicants Municipal Corporation that in a suit between the landlord and tenant it could never be made a party, is wholly misplaced because of the specific pleadings raised on behalf of respondent No.1 in the suit filed before the Small Causes Court. It is only as a matter of fair procedure, that the Municipal Corporation is made a party before the Small Causes Court, since certain pleadings are raised by respondent No.1 concerning the action undertaken by the Municipal Corporation. In this context, the learned counsel for respondent No.l is justified in contending that any such enquiry undertaken by the Small Causes Court regarding actions of the Municipal Corporation, would be incidental to the main enquiry regarding protection available to respondent No.l under the provisions of the Rent Control Act. Thus, there is no substance in the said contention also. 

Bombay High Court
Municipal Commissioner, Nagpur ... vs M/S Shivdatt And Sons, Proprietor ... on 28 November, 2019
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Can the court consider an additional circumstance against the accused if he only says he was falsely implicated in his statement under S 313 of CRPC?

 Even in the statement of the appellant recorded under

Section 313 of the Code by the learned Trial Court, the appellant

could not say anything except that he has been falsely involved in

this crime. This is also an additional circumstance in the chain of

circumstances established by the prosecution against the appellant.

(See: Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10

SCC 681). {Para 40}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

Criminal Appeal No.493/2018

Mithun @ Dhananjay Khamban Nisad, C Vs State of Maharashtra

CORAM : M.S. SONAK &

PUSHPA V. GANEDIWALA, JJ.

DATE : 29-11-2021.

 (Per: Pushpa V. Ganediwala, J.)

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Whether civil court has jurisdiction to grant a relief touching an order passed by the Tahsildar under section 5(2) of the Mamlatdar’s Courts Act, 1906?

  So far as the aspect regarding the jurisdiction of civil court to grant a relief touching an order passed by the Tahsildar under section 5(2) of the Act, true it is that an order of the Mamlatdar in such a proceeding is revisable under section 23(2) of that Act. However, conspicuously, section 22 of the Act clearly declares that any decision or order passed by the Mamlatdar would be subservient to the decision of a competent civil court in a proceeding preferred before it. Section 22 of the Act reads thus :-

“22. Subject to the provisions of section, 23 sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment of the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by competent Civil Court:
Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar's decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use :
Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of section 21, shall not be held to be conclusive.”
A bare perusal of the provision would clearly indicate that irrespective of the decision of the Mamlatdar under section 5(2), a party may approach a civil court and obtain any relief even contrary to the decision of the Mamlatdar setting it at naught.  {Para 14}

Bombay High Court

JUSTICE MANGESH S. PATIL

Digambar S/o. Vitthal Kale & Ors. Vs. Vasant S/o Kacharu Kale & Ors.

SECOND APPEAL NO. 111 OF 2017

11th January 2022

Citation: 2022 NearLaw (BombayHC Aurangabad) Online 24

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