Whether a party who is not aggrieved by a decree is competent to appeal against said decree?

It is well settled that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue found against him.

IN THE HIGH COURT OF BOMBAY

F.A. No. 800 of 1989

Decided On: 10.07.1992

Appellants: Balmukund Motiram Anecha
Vs.
Respondent: Suresh Bansilal Anecha and Ors.

Hon'ble Judges/Coram:
V.V. Kamat and S.G. Mutalik, JJ.

Citation: 1992(2)CivilCC(BOMBAY),1993(2) MHLJ1123 Bom

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Whether finding made on adverse inference is binding on parties?

It is no doubt true that much of the finding recorded by the Industrial Court on the issue was because of the adverse inference drawn by the learned Judge against the First Respondent for failure to place on record the material documents, which would have clinched the issue. Nonetheless, a finding made even on adverse inference is also a finding of fact binding on the parties. 

Bombay High Court

Baburao P. Tawade & Ors. vs Hes Ltd. Bombay & Ors. on 3 April, 1995

Equivalent citations: (1997) IIILLJ 265 Bom,1995(2)MHLJ595

Bench: B Srikrishna

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Bombay HC ; Mere possession of fake notes can’t be termed as an offence

Observing that mere possession of counterfeit notes cannot be termed as an offence and prosecution is required to prove that the person had knowledge that the notes were fake, the Bombay High Court has set aside the conviction and five year sentence awarded to a man.

Justice Anuja Prabhudessai was hearing an appeal filed by one Munshi Mohammed Shaikh challenging a sessions court order of October 2013, convicting him under sections 489 (b) and 489 (c) of IPC fors possession of counterfeit notes and sentencing him to five years in jail.

According to the prosecution, on December 19, 2011, Shaikh went to suburban Kurla branch of Punjab National Bank to deposit ₹9,500 cash. He handed 17 notes of ₹500 and one ₹1,000 note to the cashier.

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Whether sanctioned plan is public document and its certified copy is admissible in evidence?

 The document sought to be produced is a certified copy of the plan approved by the Mormugao Municipal Council. Section 74 of The Act provides that the documents forming the acts or records of the acts, of official bodies and tribunals, are public documents. Therefore, there can be no doubt that the document (certified copy of the plan) which bears the seal of the Municipality, is a public document in terms of Section 74 of The Act.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 54 of 2011

Decided On: 20.04.2011

 Shri Manuel Do Rosario Vs.  Shri Nivratti Madhav Naik 

Hon'ble Judges/Coram:
A.P. Lavande, J.

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Whether original of public document can be admitted in evidence without proving its execution in accordance with law?

The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., that Section 114 of the Evidence Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority , but in the judgment of the majority the Supreme Court has not referred tot he point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Sections 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence it must be proved in the manner required by law. In the result I reject the bills-cum-receipts which have been marked X-1 by me for identification and do not admit them in evidence.

Bombay High Court

C.H. Shah vs S.S. Malpathak And Ors. on 5 August, 1971

Equivalent citations: AIR 1973 Bom 14, (1972) 74 BOMLR 505, 1972MhLJ816

Bench: Vimadalal

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Whether court is bound to draw presumption that certified copy of document is genuine?

Section 79 of the Evidence Act reads:

" The Court shall presume to be genuine every document purporting to be a certificate.......... which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer

-of the Central Government or of a State Government................................................ Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper ".

Under this section a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the, certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. Section 4 of the Evidence Act indi- cates the limits of such a presumption. The relevant part of that section reads:

" Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved ".

To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the Court raises a rebuttable presumption in regard to its genuineness.

Supreme Court of India

Bhinka And Others vs Charan Singh on 24 April, 1959

Equivalent citations: 1959 AIR 960, 1959 SCR Supl. (2) 798

          
BENCH:
SUBBARAO, K.
DAS, S.K.
SARKAR, A.K.

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Whether court can draw adverse inference when Important documentary evidence is withheld?

Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara(1) Lord Shaw observed as follows:

"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to (1) 44 I. A. 98, at P. 103.

third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."

Supreme Court of India

Gopal, Krishnaji Ketkar vs Mahomed Haji Latif & Ors on 19 April, 1968

Equivalent citations: 1968 AIR 1413, 1968 SCR (3) 862

Bench: Ramaswami, V.

Evidence--Important documentary evidence withheld--Technical
plea of onus of proof cannot prevent adverse inference.

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When photostat copies of letters are admissible in evidence?

On the whole, we think that if the court is satisfied that there is no trick photography and the photograph is above suspicion, the photograph can be received in evidence. It is, of course, always admissible to prove the contents of the document, but subject to the safeguards indicated, to prove the authorship. This is all the more so in India under s. 10 of the Evidence Act to prove participation in a conspiracy. Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals, Many conspiracies will then remain unproved because one of the usual methods is to intercept a letter, take its photograph and then to send it on and wait for the reply. But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not faked or false. In the present case no such suggestion exists and the originals having been suppressed by the accused, were not available. The evidence of photographs as to the contents and as to handwriting was receivable. 639, Regarding the specimen writing in the letter Z 217, with which, the impugned writings were compared, we think the letter must be treated as genuine for the purpose of comparison of handwriting. The letter was written on June 1, 1960 from Bombay to one Begraj Choraria at Bidsedar. It was admittedly recovered. from Balchand appellant's ancestral house. It was addressed to Dadaji Sahib and it contains numerous references to domestic matters which are usually written in such letters. Corroboration of some of the things said there was available from other sources. It is impossible to think that such a letter could have been forged and planted at Bidsedar in the ancestral home. The letters in BC series 1-45 were rightly compared with it to determine Balchand's handwriting.

Supreme Court of India

Laxmipat Choraria And Ors vs State Of Maharashtra on 14 December, 1967

Equivalent citations: 1968 AIR 938, 1968 SCR (2) 624,1968(70)BOMLR595, 1968CriLJ1124, 1969MhLJ153, 1969MPLJ109(SC),

Bench: Hidayatullah, M.

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Whether company can sue in forma pauperis?

Therefore, the word 'person' has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1 CPC. We hold that the word 'person' mentioned in Order XXXIII includes not only a natural person but other juridical persons also. The appeal is, therefore, without any merit and dismissed without any order as to costs.

Supreme Court of India

Union Bank Of India vs Khader International ... on 8 May, 2001

Bench: U.C. Banerjee, K.G. Balakrishnan

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When Hardship to plaintiff shall outweighs sanctity of contract?

 Mr. Madan, however, contends that where parties have made with eyes open a contract of the kind represented in Clause 2 of the Bills of Lading, it is appropriate that such a contract should be specifically enforced and stay should be granted. There is no doubt that the principle is well established that agreements, made between parties as regards their disputes being decided by particular Courts are generally enforced. In this connection it is important to bear in mind that sales on c.i.f. terms are not infrequent and large business is carried on by merchants in this country and other countries by purchases which are made on c.i.f. terms. The shipping documents include Bills of Lading made by diverse shipping companies at diverse Ports. The foreign shippers have very often no direct relation with the purchasers on c.i.f. terms in India. The shipping documents pass from different purchasing parties and go to an ultimate purchaser who is more often than not unaware at the date of the purchase of the terms and condition in the relevant bill of lading. In cases of such purchases, to enforce contracts of this kind must cause great hardship and inconvenience: it must also restrain international trade in a large way. The more important factor in these two suits, which are stayed by the lower Court, is that the claims are extremely small amounts of damages. If the plaintiffs in these cases are referred to Courts in Denmark, it is obvious that the whole of their claim would be lost in the costs that they would have to incur. They might have probably to spend larger out of pocket expenses than the damages claimed in the suits. This fact has weighed on us in a large way. It appears to us that in cases where claims are for (very) small amounts of damages and parties have purchased goods in transit on c.i.f. terms, it cannot be appropriate to enforce contracts of the kind contained in the Clause 2 of the Bills of Lading, The hardship involved to the plaintiffs in these cases overweighs the sanctity of the contract contained in Clause 2 of the Bills of Lading. We are, therefore, of the view that these suits ought not to be stayed and must be allowed to proceed.
Citation: AIR1964Bom71, 1963(65)BOMLR487, ILR1964 Bom 151, 1963MhLJ768

IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. No. 1236 of 1960 with A.F.O. No. III of 1960

Decided On: 13.12.1962

 New Great Insurance Co. of India Ltd.
Vs.
 Aktiselskaleet Set Astasiatsske Kampagni, Bombay

Coram:
D.V. Patel and K.K. Desai, JJ.

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Whether doctrine of Res judicata is applicable if raising of that issue in previous suit was discretionary?

Equivalent Citation: AIR1961Bom97, 1960(62)BOMLR360, ILR1960 Bom 493

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 115 of 1955

Decided On: 25.11.1959

Appellants: Mathurabai w/o Nilkanth Deshpande and Anr.
Vs.
Respondent: Ramkrishna Bhaskar Barve and Ors.

Hon'ble Judges/Coram:
S.P. Kotval and V.B. Raju, JJ.

Civil Procedure Code (Act V of 1908), Section 11 - Indian Contract Act (IX of 1872), Section 65 --Trustees of Deosthan unauthorizedly selling trust property to plaintiff--Suit for possession by Deosthan against plaintiff and trustees but trustees joined as formal parties and no relief claimed against them--Plaintiff contending that if sale void Deosthan to be ordered to refund consideration--Suit decreed and no appeal filed --Suit by plaintiff against trustees for recovering consideration--Whether judgment in former suit res judicata on question of liability of trustees--Discretionary relief claimed in former suit and issue raised on it--Whether principle of res judicata applies to such issue--Applicability of principle of res judicata where raising of issue not obligatory--Principle embodied in Section 65, Indian Contract Act, whether can be extended to property purchased from consideration of void contract.

A house belonging to a Deosthan was sold to the plaintiff for Rs. 2,000 by the defendants who were its trustees. Another trustee of the Deosthan filed a suit on its behalf against the plaintiff for a declaration that the sale of the house was void and for possession. The defendants were made formal parties to the suit and no relief was claimed against them. The plaintiff contended that if the sale deed was found to be void, the Deosthan should be put to terms and ordered to pay back Rs. 2,000. There was no prayer by the plaintiff that the defendants should be put to terms. The plaintiff's plea was rejected and the suit was decreed, the trial Judge finding that neither the Deosthan or the defendants could be put to terms before setting aside the sale. There was no appeal against the decree. Thereafter the plaintiff filed a suit against the defendants and the Deosthan and inter alia contended that a decree should be passed against the defendants for Rs. 2,000. On the question whether the judgment in the previous suit was res judicata on the question whether the defendants should be ordered to refund Rs. 2,000 to the plaintiff:-

Held:

That as the parties in the former suit had not joined issue on the question of the liability of the defendants to refund Rs. 2,000 and as there was no adverse finding in the judgment in the previous suit against the defendants, the judgment did not operate as res judicata on the question of the liability of the defendants to pay Rs. 2,000 to the plaintiff.

If a relief in a suit is claimed in fact, whether discretionary or not, and an issue raised on it the principle of res judicata would apply as the relief, though discretionary, having been claimed, it is a matter directly and substantially in issue. If a particular issue has not been raised, the principle of res judicata would still apply to it if that issue ought to have been made a ground of defence or attack. But this principle would not apply if the raising of that issue was discretionary and not obligatory.

The principle embodied in Section 65 of the Indian Contract Act, 1872, cannot be extended to properties purchased from the consideration of a void contract.

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When findings leading to previous decision will be Res judicata?

Previous decision based on several findings-Findings leading to decision will be Res Judicata.
The case debated on whether all the findings supporting a decision would operate as res judicata- It was held that a finding could operate as res judicata only if it has resulted in a particular decree or order- Where a decree or order is based on only one finding, the finding would have the force of res judicata- Where a previous decision is supported on two or more findings, all the findings would not necessarily operate as res judicata- Where the plaintiff’s suit was liable to be dismissed if either of the two issues framed by the Court was found against him, the decree in the suit could not be said to have been based on or to be attributable to, only one of the two findings and hence both findings were res judicata.

Bombay High Court

Laxman Shivashankar vs Saraswati And Anr. on 8 September, 1960

Equivalent citations: AIR 1961 Bom 218, (1961) 63 BOMLR 152

Bench: Tarkunde, Patwardhan

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Whether plea of Res judicata can be waived?

 That a plea of res judicata is not a plea touching the jurisdiction of a Court in the total or absolute sense and that it can be waived by a party to a proceeding has been held in P. C. Ray and Co. (India) Pvt. Ltd. v. Union of India. The observations made by their Lordships in paras 14 and 15 of this judgment are pertinent :

"14. the plea of res judicata, in our opinion, is not a plea touching the jurisdiction of a Court in the total or absolute sense. The Court has to go into the said plea as any other plea of law, as for example, limitation and then decide whether the issue or the claim is barred by res judicata or principles analogous thereto.

15. It has been held that the plea of res judicata may be waived by a party to a proceeding. In the premises the plea of res judicata can never be a judisdictional question. For jurisdiction can be conferred neither by waiver nor even by consent of the parties. It has been held by a Division Bench of this Court in Rajani Kumar Mitra v. Ajmaddin Bhuiya as follows : to wit : --

"The bar of res judicata is one which does not affect the jurisdiction of the court but is a plea in bar which a parry is at liberty to waive. If a party does not put foward his plea of res judicata in a suit he must be taken to have waived it.....The party omitting to plead res judicata intentionally invites the court to decide the case on the merits....." "

15. Order VI, Rule 1 of the Civil P.C. defines "pleading" as meaning plaint or written statement. The plea of res judicata, on the strength of the decision (supra), raised by the non-applicant plaintiff in reply to the application of the applicant-defendant (Exhibit 36) dt. 3-12-1983, challenging the jurisdiction of the Small Cause Court, cannot be said to have raised in the plaint without the plaint having been amended. As the plea of res judicata can also be waived by a party, the learned Small Causes Court should not have considered the question of res judicata while deciding the application (Exhibit 36) and precluded the applicant-defendant from challenging its juridiction on the ground that a substantial issue as regards title and interest in the immoveable property was being raised in the suit.

Bombay High Court

Wilfred Lovette vs Ganesh on 9 November, 1987

Equivalent citations: AIR 1988 Bom 142, 1988 (1) BomCR 637

Bench: B Deo

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Master circular of Reserve bank of india on wilful Defaulters; critical analysis

Being a developing country, India has felt the waves of liberalization and globalization since 1991. It soon leads to a compelling requirement of financial system and thus gave a spur to the credit requirement in the market. As the volume of credit, credit agencies and credit beneficiaries increased manifold, a simultaneous increase in the risks and fraud associated with the credits also followed. A need was felt by the Authorities for surveillance of such delinquencies. CIBIL (Credit Information Bureau (India) Limited), India's first credit information Bureau, was set up in the year 2001 jointly by banks and financial institutions. The establishment of CIBIL was with the motive of improving the financial system thereby reducing the chances of Non Performing Asset (NPA).

A scheme was framed by Reserve Bank of India (RBI) in April, 1999 wherein the banks and notified financial institutions were required to submit to RBI the details of willful defaulters who made defaults of Rs. 25 lakhs and above. Further, wilful default hovered in the financial system and then the Reserve Bank of India, in consultation with the Government of India, constituted in May 2001, a Working Group on Wilful Defaulters (WGWD).

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Delhi High Court: CCI Has Inherent Powers To Review/Recall Its Orders

Such a power has to be exercised on the well recognized parameters of the power of review / recall and without lengthy arguments and without the investigation already ordered being stalled indefinitely. In fact, it is up to the CCI to also upon being so called upon to recall / review its order under Section 26(1) of the Act to decide whether to, pending the said decision, stall the investigation or not, as observed hereinabove also. The jurisdiction of review / recall would be exercised only if without entering into any factual controversy, CCI finds no merit in the complaint / reference on which investigation had been ordered. The application for review / recall of the order under Section 26(1) of the Act is not to become the Section 26(8) stage of the Act.

 We therefore answer the question framed hereinabove for adjudication in affirmative and hold that respondent No.1 CCI has the power to recall / review the order under Section 26(1) of the Act but within the parameters and subject to the restrictions discussed above.

Delhi High Court

Google Inc. & Ors vs Competition Commission Of India & ... on 27 April, 2015

Author: Rajiv Sahai Endlaw

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Verify Genuineness Of ID Proof Before Activating New SIM; Patna HC

 From the pleadings filed on behalf of Respondent-State, it is evident that investigation in serious crime reported in 141 First Information Reports during the period between 10.04.2005 to 15.10.2014 failed as investigator failed to reach the subscriber of SIM connection issued on the basis of fake identity, address proof. In the circumstances, we would like to direct the Department of Telecommunications to take into account the security concern of the people before activating the SIM. In our opinion, the security concern of the people can be met only after confirming the genuineness of the identity, address proof document appended with the CAF presented by the subscriber at the point of sale. Mere verifying/ matching the same with its so called original does not take into account the security concern of the people. Accordingly, we direct that the existing guidelines dated 14.03.2011 and 09.08.2012 be supplemented by instructing the service provider to confirm the genuineness of the identity, address proof appended with the CAF from the Authority which has issued the same, may be through the official E-mail of the Authority/ Organization, which has issued the identity, address proof to the subscriber. For example, in the case of passport, driving licence, Aadhar from the office which has issued the same. Until the identity, address proof of the new subscriber is verified from the authority/ organization concerned new SIM should not be activated. In our opinion, guidelines be supplemented, as early as possible, in any case, within three months from the date of receipt/ production of a copy of this judgment before the Secretary (Telecom). In this connection, we may observe that the Service Providers do not have absolute right to carry on their business in the manner in which they like. Right to carry on business is always subject to reasonable restrictions imposed in the interest of general public and national security which cannot be allowed to be compromised at any rate. The requirement to confirm the genuineness of the identity, address proof from the authority which has issued the same would come within reasonable restriction envisaged under sub-clause (6) of Article 19 of the Constitution as the same is required for ensuring the security, human right concern of the people to contain the menace of crime perpetrated through mobile phone by reaching the perpetrator of crime through his identity, address proof appended with the CAF and verified from the authority which has issued the same after the identity, address proof is presented at the point of sale.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH 

Criminal Writ Jurisdiction Case No.277 of 2013 

Arising Out of PS.Case No. -39 Year- 2011 Thana -JAMHORE District-SAHARSA 

Balinder Singh, Son of Late Naujadik Singh, 

Versus 

The State of Bihar through its Chief Secretary, Govt. of Bihar, Patna 

 Date: 22 -05-2015 

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Whether court is entitled to take in to consideration pleadings of parties for construction of ambiguous decree?

In Topanmal Chhotamal Vs. M/s. Kundomal Gangaram
reported in AIR 1960 SC 388, the Supreme Court held that when an
ambiguous decree is passed, it is the duty of the executing court to

interpret the decree and for this purpose, the court is entitled to look
into the pleadings and the judgment. Similar observation was made in
Bhavan Vaja Vs. Solanki Hanuji Khodaji Mansang reported in AIR 1972
SC 1371, where the Apex Court made the following observation.
“19. It is true that an executing court cannot go behind the decree under
execution. But that does not mean that it has no duty to find out the true
effect of that decree. For construing a decree it can and in appropriate cases,
it ought to take into consideration the pleadings as well as the proceedings
leading upto the decree. In order to find out the meaning of the words
employed in a decree the Court, often has to ascertain the circumstances
under which those words came to be used. That is the plain duty of the
executing Court and if that Court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the execution court
in this case thought that its jurisdiction began and ended with merely
looking at the decree as it was finally drafted. Despite the fact that the
pleadings as well as the earlier judgments rendered by the Board as well as
by the appellate Court had been placed before it, the execution Court does
not appear to have considered those documents. If one reads the order of
that Court, it is clear that it failed to construe the decree though it purported
to have construed the decree. In its order there is no reference to the
documents to which we have made reference earlier. It appears to have been
unduly influenced by the words of the decree under execution. The appellate
Court fell into the same error. When the matter was taken up in revision to
the High Court, the High Court declined to go into the question of the
construction of the decree on the ground that a wrong construction of a
decree merely raises a question of law and it involves no question of
jurisdiction to bring the case within Section 115, Civil Procedure Code. As
seen earlier in this case the executing Court and the appellate Court had not
construed the decree at all. They had not even referred to the relevant
documents. They had merely gone by the words used in the decree under
execution. It is clear that they had failed to construe the decree. Their
omission to construe the decree is really an omission to exercise the
jurisdiction vested in them.”
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRP No. 440 of 2006
Illiasuddin Ahmed,

-Versus-
Md. Hachnian Ahmed,
S/O Late Mominuddin,

BEFORE
THE HON’BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing & Judgment :
20th January, 2015
Citation;AIR 2015 Gauhati 49

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Whether court can review its own judgment on the ground that it has not considered judgment of Supreme court?

Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Where there is a decision of the Supreme Court holding the field and the High Court takes a contrary view, it needs no elaborate argument to point to the error. The error is self-evident. It is held in M/s. Thungabhadra Industries Ltd. v. The Govt. of Andhra Pradesh, AIR 1964 SC 1372 that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

 In view of the analysis made in the preceding paragraphs we hold that failure of the Court to take into consideration an existing decision of the Supreme Court taking a contrary view on a point covered by its judgment would amount to an error apparent on the face of the record.

Orissa High Court

Collector Cuttack And Others vs Bharat Chandra Bhuyan on 11 December, 2014

Citation;AIR 2015 (NOC) 379 Orissa

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Whether state is liable to pay compensation for injuries caused due to accidental firing by police?

It is now well settled that violation of fundamental right of any citizen by the State agency could be a cause for award of compensation to the aggrieved person as the State has the obligation to ensure safety of the life and limb of the citizen which is guaranteed under Art. 21 of the Constitution.
 In the present case, the limb of the petitioner was grievously injured affecting his peaceful enjoyment of life without any contributory negligence on his part and the State respondents have already admitted that the said injury was caused by firing of the police personnel. It may be also observed that even if it is accidental firing as held by the authorities, it was the responsibility of the police personnel to handle such a deadly weapon in public place with utmost care so as not to cause any injury to any civilian without any just cause.

IN THE HIGH COURT OF MANIPUR AT IMPHAL

Writ Petition(C) No. 130/2009

Decided On: 31.07.2014

Appellants: Thokchom Ranjit Singh
Vs.
Respondent: The State of Manipur

Hon'ble Judges/Coram:N. Kotiswar Singh, J.

Citation;AIR 2015(NOC)382 Manipur

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Whether circular issued by Reserve bank of India are binding on banks and financial institutions?

The Master Circular being issued under Section 35A of the Banking Regulation Act, 1949, has a binding effect on a bank or a financial institution. When a Master Circular has such binding effect to try and find out portions of it and that too crucial portions and hold that such portions are directory, would be against the intention of the legislature when the legislature prescribes that a Circular issued by the Reserve Bank of India under Section 35A of the Banking Regulation Act, 1949 is binding on a bank and financial institution governed by it.

Calcutta High Court

Kingfisher Airlines Limited & Ors vs Union Of India & Ors on 24 December, 2014

Author: Debangsu Basak

Citation;AIR 2015 (NOC)337 CAl

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When employer may not recover excess payment made by him to employee due to his own mistake?

 It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

Supreme Court of India

State Of Punjab & Ors vs Rafiq Masih (White Washer) on 18 December, 2014

Bench: Jagdish Singh Khehar, Arun Mishra

Citation;AIR 2015 SC 1267

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Whether beneficiary of trust can be impleaded as party in suit for specific performance against trust?

After due consideration of the rival submissions, we are of the view that the High Court erred in interfering with the order of the trial Court impleading the appellant as a party defendant. Admittedly, the appellant is a beneficiary of the Trust and under the provisions of the Trusts Act, the Trustee has to act reasonably in exercise of his right of alienation under the terms of the trust deed. Appellant cannot thus be treated as a stranger. No doubt, it may be permissible for the appellant to file a separate suit, as suggested by Respondent No.1, but the beneficiary could certainly be held to be a proper party. There is no valid reason to decline his prayer to be impleaded as a party to avoid multiplicity of proceedings. Order I Rule 10(2), CPC enables, the Court to add a necessary or proper party so as to "effectually and completely adjudicate upon and settle all the questions involved in the suit".

Supreme Court of India

Baluram vs P.Chellathangam & Ors on 10 December, 2014

Bench: T.S. Thakur, Adarsh Kumar Goel

Citation;AIR 2015 SC 1264

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Whether gross income of accident victim is to be considered for computing loss of dependency for grant of compensation?

We are of the view, that on the facts and circumstances of this case, the net salary of the deceased taken by the Tribunal and the High Court for determination of loss of dependency is erroneous as it is not in accordance with the principles laid down by this Court in this regard. Therefore the same is liable to be set aside as it has to be properly determined by taking gross income of the deceased. It is clear that the gross income of the deceased at the time of his death as per his salary slip was Rs.26,000/- per month. Therefore, we are of the view that a just and reasonable compensation under the head of loss of dependency has not been determined by the courts below. Thus, the impugned judgment and order of the High Court is vitiated both on account of erroneous finding and error in law. The gross salary drawn by the deceased at the time of his death was Rs.26,000/- per month. The High Court and the Tribunal have taken the net salary at Rs.21,168/- per month, thereby the Courts below have erred in making deductions from the gross salary of the deceased towards P.T. of Rs.200/- and other statutory deductions and therefore, arriving at Rs.21,168/- per month as the net salary of the deceased is erroneous in law. Therefore, we are of the view that both the Tribunal and the High Court have erred in not following the rules laid down by this Court in Indira Srivastava’s (supra) in not taking gross income of the deceased to determine the loss of dependency.

Supreme Court of India

Yerramma & Ors vs G. Krishnamurthy & Anr on 28 August, 2014

Bench: Dipak Misra, V. Gopala Gowda

Citation;AIR 2015 SC 1145

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Whether disciplinary proceeding against govt servant can continue even after retirement even though no pecuniary loss is caused to Government?

 It is therefore apparent, that it is not only for pecuniary loss caused to the Government that proceedings can continue after the date of superannuation. An employee can be proceeded against, after the date of his retirement, on account of “... grave misconduct or negligence ...”. Therefore, even in the absence of any pecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retired from service. Obviously, if such grave misconduct or negligence, entails pecuniary loss to the Government, the loss can also be ordered to be recovered from the concerned employee. It was therefore not right for the High Court, while interpreting Rule 10(1) of the 1971 Rules to conclude, that proceedings after the date of superannuation could continue, only when the charges entailed pecuniary loss to the Government.

Supreme Court of India

State Of West Bengal & Ors vs Pronab Chakraborty on 15 October, 2014

Bench: Jagdish Singh Khehar, Arun Mishra

Citation; AIR 2015  SC 1278

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When employee is not empowered to file complaint for dishonour of cheque on behalf of Company?

In this case it is not in dispute that the complaint was filed by one Shri V. Shankar Prasad claiming to be General Power of Attorney of the complainant company. Subsequently PW-1 Shri Ravinder Singh gave the evidence on behalf of the Company under the General Power of Attorney given by the complainant Company. The complaint was not signed either by Managing Director or Director of the Company. It is also not in dispute that PW-1 is only the employee of the Company. As per Resolution of the Company i.e. Ex.P3 under first part Managing Director and Director are authorized to file suits and criminal complaints against the debtors for recovery of money and for prosecution. Under third part of the said Resolution they were authorized to appoint or nominate any other person to appear on their behalf in the Court and engage lawyer etc. But nothing on the record suggest that an employee is empowered to file the complaint on behalf of the Company. This apart, Managing Director and Director are authorized persons of the Company to file the complaint by signing and by giving evidence. At best the said persons can nominate any person to represent themselves or the Company before the Court. In the present case one Shri Shankar Prasad employee of the Company signed the complaint and the Deputy General Manager of the Company i.e. PW-1 gave evidence as if he knows everything though he does not know anything. There is nothing on the record to suggest that he was authorized by the Managing Director or any Director. Therefore, Magistrate by judgment dated 30th October, 2001 rightly acquitted the appellant. 

Supreme Court of India

A.C. Narayanan vs State Of Maharashtra & Anr on 28 January, 2015

Bench: Sudhansu Jyoti Mukhopadhaya, S.A. Bobde

Citation; AIR 2015 SC 1198

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When provisions of Official Secrets Act, 1923 is not violated by whistle blower?

 Though the submissions made by Mr. Sinha's learned counsel on the contents of his application were limited, the oral submissions spread over a larger canvas. It is submitted by Mr. Vikas Singh that Mr. Prashant Bhushan, Common Cause and Mr. Kamal Kant Jaswal have not only committed perjury but are also guilty of contempt of Court and additionally Mr. Prashant Bhushan has violated the provisions of the Official Secrets Act, 1923 by placing on record the official notes with regard to the case of the Dardas. We have considered Mr. Sinha's application from all these angles.

 In our opinion, the submissions made by Mr. Vikas Singh in this regard do not deserve acceptance. It is true that this Court had required the Director, CBI to ensure, by its order dated 8th May, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest.

In that event, it would be permissible for this Court or an appropriate Court to take action against the whistle blower, if he or she is identified. However, the present case is not of any such category. The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr. Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr. Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.

 In these circumstances, it is difficult to hold that Mr. Prashant Bhushan or Common Cause or Mr. Kamal Kant Jaswal had any intention to mislead this Court in any manner, nor do we agree that they have perjured themselves. The file notes speak for themselves and any interpretation, even an allegedly twisted interpretation said to have been given to them, cannot fall within the realm of perjury.

Common Cause & Ors. Vs. Union of India and Ors.

[I.A. No. 13/2014]

[Crl. M.P. No.387/2015]

[Writ Petition (C) No.463/2012]

Dated;14 MAY 2015

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Evidence led by party Vs Findings of court commissioner

Our attention is also drawn by the learned Counsel for the Defendants, to the copy of the report of Advocate Commissioner (Annexure P-2) in which the Advocate Commissioner has reported that the Defendants were found in possession of the disputed property.

16. However, in our view, Advocate Commissioner's report, in the present case, is against the weight of the oral and documentary evidence on record which sufficiently proves that Plaintiff was in possession over plot No. 358, and for several years he was paying the house tax as was found by the trial court on the basis of house tax receipts and extracts of house tax Assessment Register. It is not disputed that plot No. 357 belonging to the Defendants was in south of plot No. 358, and house of the Defendants was situated over their plot. The trial court has decreed the suit only in respect of plot No. 358.

Advocate Commissioner's report was against weight of oral and documentary evidence on record which sufficiently proved that Plaintiff was in possession over suit property and he was paying house tax - No infirmity in impugned order - Appeal dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 666 of 2015 (Arising out of S.L.P. (C) No. 8008 of 2009)

Decided On: 27.01.2015

 Zarif Ahmad and Ors. Vs. Farooq

Hon'ble Judges/Coram:Dipak Misra and Prafulla C. Pant, JJ.

Citation; AIR 2015 SC1236,(2015) 13 SCC673

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Whether civil suit is maintainable when transformer and electric posts have been erected outside property of a person?

 The petitioner contends that his right as

an owner of the property adjacent to a street cannot be

invaded relying on P.K.Wariyar v. State of Kerala and

others [AIR 1990 Kerala 218].      The petitioner adds that


he should have an unhindered right of passage from his

property to the public street relying on B.Govinda Rao

v. District Collector and others [AIR 1983 Kerala 10].

These are matters to be addressed by the civil court as

and when the petitioner institutes the proceedings and

not for the District Magistrate to ponder over in a

situation      like this.    The  District Magistrate is

clothed with jurisdiction only if the telegraph line or

post has been placed under, over, along, across, in or

upon the property of the petitioner. Resultantly this

writ petition is dismissed without prejudice to the

right if any of the petitioner to move any forum other

than the District Magistrate as per law.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT:

                   THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

            FRIDAY, THE 9TH DAY OF JANUARY 2015

                             WP(C).No. 474 of 2015 (H)
                             

         G.SUNIL KUMAR, 
Vs

       KERALA STATE ELECTRICITY BOARD
          
                ---------------------
      Dated this the 9th day of January, 2015

                Citation;AIR 2015 kerala 122

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Whether decree is executable when property can be identified?

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 666 of 2015 (Arising out of S.L.P. (C) No. 8008 of 2009)

Decided On: 27.01.2015

Appellants: Zarif Ahmad and Ors.
Vs.
Respondent: Farooq

Hon'ble Judges/Coram:Dipak Misra and Prafulla C. Pant, JJ.

Property - Restoration of decree - Non-identifiable - Determination of nature - High Court set-aside order of First Appellate Court (FAC) and restored decree passed by Trial Court wherein it was held that Respondent-Plaintiff was owner and in possession of suit property - Hence, present appeal - Whether property in suit was not identifiable and FAC committed no error of law in dismissing suit - Held, present suit was for relief of permanent prohibitory injunction in respect of land which was described with boundaries and its municipal number - Therefore, it could not be said that decree passed by Trial Court was un-executable - High Court rightly held that there was no need on part of FAC to remit matter to Trial Court to allow parties to adduce evidence on additional issue, as neither issue on identifiability of land arose from pleadings nor evidence was lacking on record - Advocate Commissioner's report was against weight of oral and documentary evidence on record which sufficiently proved that Plaintiff was in possession over suit property and he was paying house tax - No infirmity in impugned order - Appeal dismissed.

 The object of the above provision is that the description of the property must be sufficient to identify it. The property can be identifiable by boundaries, or by number in a public record of settlement or survey. Even by plaint map showing the location of the disputed immovable property, it can be described. Since in the present case, the suit property has been described by the Plaintiff in the plaint not only by the boundaries but also by the municipal number, and by giving its description in the plaint map, from no stretch of imagination, it can be said that the suit property was not identifiable in the present case. In our opinion, the High Court has rightly held that the first Appellate Court has erred in law in dismissing the suit by holding that the land is not identifiable. It appears that the first Appellate Court has wrongly framed the additional issue as to whether the property in dispute is identifiable or not particularly when there was no such plea in the written statement. We are in agreement with the High Court that there was no need on the part of the first Appellate Court to remit the matter to the trial court as contended by the Defendants before it (High Court) to allow the parties to adduce evidence on the additional issue, as neither issue on identifiability of land arises from the pleadings nor the evidence was lacking on record

Citation; AIR2015SC1236,

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