Whether courts can interfere in Election process?

The main question arises for consideration is whether the Writ Petitions filed under the guise of Public Interest Litigation are maintainable in view of the bar in Article 329(b) of the Constitution of India, before culmination of the Election process. Article 329 of the Constitution of India takes away the jurisdiction of the Courts in certain matters relating to Election, which are governed by Part XV of the Constitution. Clause (b) of Article 329 excludes the jurisdiction of the Courts to entertain any matter relating to Election. The question as to whether the word "Election" in Article 329(b) of the Constitution would embrace the whole procedure of Election or whether it is not confined to the final result, came up for consideration before the Constitutional Bench of the Hon'ble Supreme Court in N.P. Ponnuswami's case. In the said case, the Hon'ble Supreme Court has interpreted Article 329(b) of the Constitution of India and held that the word "Election" in the said provision would include the entire process of Election commencing with the issue of notification and terminating with the declaration of election of a candidate and that a petition under Article 226 of the Constitution of India challenging the validity of any of the facts forming any part of that process would be barred.

IN THE HIGH COURT OF MADRAS

W.P. Nos. 18159, 18196 of 2016 and W.M.P. No. 15940 of 2016

Decided On: 18.05.2016

Satta Panchayat Iyakkam (SPI) and Ors.
Vs.
 The Chief Election Commissioner, Election Commission of India and Ors.

Hon'ble Judges/Coram:K. Kalyanasundaram and D. Krishnakumar, JJ.

Print Page

Whether bank can refuse to make payment to nominee?

Nomination made by a depositor/account holder is the reflection of his wish upon identification by him of the recipient of the deposit lying in an account in the event of death of such depositor/account holder and to hold the same in his (recipient's) custody for being distributed according to the law of succession. Nomination, which is made without any coercion, undue influence or misrepresentation and is accepted by a banking company upon a satisfaction that the nomination does not suffer from any of the vitiating factors and clothes the nominee to receive the amount, ought to be acted upon after the death of the depositor/account holder, for, that would result in honouring his wish. If at all the nomination is, at a subsequent stage, found to suffer from any technical defect precluding the banking company to act on such nomination, it ought to be the bounden duty of the officials of the bank to get the nomination rectified/altered so as to bring it in conformity with the statutory requirements provided the depositor/account holder is alive. Once the opportunity to get the nomination rectified/altered is lost by the tardy and indolent acts of the officials of the bank, it would not be in the interest of justice to allow the banking officials to refuse to honour the wish expressed by the depositor/account holder.

IN THE HIGH COURT OF CALCUTTA

W.P. No. 983 of 2015

Decided On: 30.03.2016

Communist Party of India (Marxist)

Vs.

United Bank of India and Ors.

Hon'ble Judges/Coram:

Dipankar Datta, J.

Citation: AIR 2017(NOC)15 Cal

Print Page

Whether plaintiff can be granted possession of property if he fails prove title over property?

As the plaintiff-petitioner is not proved to be in
posssession of the suit property, so he is not entitled for the relief of
injunction. The plaintiff has also sought the relief of possession, in case it
is found that he is out of possession. For claiming that relief of
possession, the plaintiff was required to establish his title to the suit
property but the plaintiff has not been able to establish that the suit
property was ever orally gifted to his father Mangal Sain, rather the
revenue record and notification dated 11.04.1987 shows the same to be
wakf property.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
 Civil Revision No.2042 of 2016 (O&M)
 Date of decision : 03.05.2016
Kullu Ram
V
Punjab Wakf Board, Ambala.
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH
Citation: AIR 2017 (NOC) 10 P&H

Print Page

Whether father is liable to pay marriage expenses of daughter if mother is earning income?

 It is an undisputed fact that under the old Hindu Law the

liability to maintain the minor children was on the father and the

right of the unmarried daughter to claim maintenance from the


father    extended   upto her    marriage    or till she is capable of

maintaining herself. But by virtue of subsequent development of

law that obligation has been cast on both the parents if both are

earning members        and having sufficient means to meet the

maintenance of the children and the liability to maintain parents

cast on both the son and the daughter by virtue of Section 20 of

the Hindu Adoption and Maintenance Act. It is also settled law

that by virtue of the obligations deriving from tradition that such an

obligation to maintain the wife and the children               on the

husband/father    is personal and both moral and legal and that

arises not on account of any contract, but due to the relationship

created by virtue of the marriage which creates a bond between

the parties making him responsible to look after the wife and the

children and in the case of unmarried daughters to maintain them

till their marriage if they are unable to maintain themselves. By

virtue of the development of law, maintenance to the children has

now been a joint responsibility of of both the parents if both are

earning. Even in a case where the unmarried daughter is living

with the mother, who is getting some income and being looked

after by her, she is entitled to claim maintenance from the father

also which includes the educational expenses and marriage

expenses. Merely because the mother is looking after the affairs of

the unmarried daughter including performance of marriage, it will


not exonerate the legal and personal obligation of the father to

contribute    his share for that purpose.       Since it is   a joint

responsibility of both earning parents to perform the obligation of

maintaining unmarried daughters and giving them in marriage,

then the spouse who is spending the amount is entitled to get

due contribution from the other spouse who is not looking after

them and other spouse is not entitled to take advantage of the fact

that the unmarried daughter is being maintained by the mother

who is also an earning member.           So an obligation to      get

contribution from the husband by the mother has to be extended

so as to strengthen the liability of the father to pay his due

contribution for the maintenance and       welfare of his unmarried

daughter and he should not be left free of such liability.

      64. As far as     Hindu Marriage is     concerned, it is not a

contract but a sacrament. At the time of marriage, both man and

woman take an oath before the Goddess of Fire that they will

mutually understand each other and share the happiness and

sorrow equally and try to make each other happy and shower

love on each of them. They will share the burden of running the

family institution taking into the concept of family a basic unit and

necessity of the existence of that unit for the welfare of the

society. The solemn oath taken by them creates a responsibility

on the husband to look after the wife and children both male and


female till they attain majority and in the case of female takes up

the responsibility of looking after her till her marriage. Under the

Pristine Hindu Law, there is a responsibility on the father to give

daughter in marriage as in olden days, men alone are expected

to work and earn money and it is the responsibility of the women

to manage the household            effectively which includes her

responsibility to look after the children and husband. But as the

time passes, women also started earning and shared the burden of

running the family along with the husband and that was the reason

why when the law was codified on the aspect of maintenance the

burden of providing maintenance has been cast on the mother as

well. Since the responsibility of the father and mother to look

after the children has become mutual and joint as far as the

children are concerned by virtue of the law and an option has

been given to the children to proceed against either of them and

by virtue of the precedents that liability has become joint, they are

liable to share the responsibility in pro-rata to their income.

That be the case merely because        the   mother is earning     and

looking after the daughter and taking the responsibility of giving

her in marriage by burdening herself        by taking   loan will not

absolve the liability of the father to make his contribution for this

purpose and the wife is entitled to enforce the liability of the father

to provide his contribution if he has not contributed anything and


the entire burden has been taken by her for this purpose by

virtue of his obligation and oath taken at the time of marriage and

become a liability on him by virtue of         the law made by the

legislature and judge made precedents.         Since it is a liability

arising out of a marriage relationship which wife is entitled to claim

by virtue of the above principle, then the claim for that purpose

by the mother will be maintainable before the Family Court by

virtue of Section 7 Explanations (c) & (d) of the said Act. So the

contention of the counsel for the first respondent that he is not

liable to pay the marriage expenses or educational expenses of

an unmarried daughter and such a claim by the mother will not be

maintainable before the Family Court is unsustainable in law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                                             "CR"
                                PRESENT:

              MR.JUSTICE A.M.SHAFFIQUE
                                   &
              MR.JUSTICE K.RAMAKRISHNAN
   6TH DAY OF APRIL 2017
                     Mat.Appeal.No.681 of 2007 
            N.P.LEELAMMA, 
Vs

            M.A.MONI, 

Print Page

Whether nature of Wakf property changes if it is leased?

It is settled principle of law that once a wakf always a
wakf. The property which has been found as a wakf always retain its
character as a wakf. Mere leasing out of such property in any manner

will not nullify the original character of the property.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
 Civil Revision No.2042 of 2016 (O&M)
 Date of decision : 03.05.2016
Kullu Ram
V
Punjab Wakf Board, Ambala.
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH
Citation: AIR 2017 (NOC) 10 P&H

Print Page

Whether court can grant divorce by mutual consent if wife withdraws her consent?

The Court has all rights during avizandum to make an enquiry
and record its satisfaction on any petition or objection filed interregnum, by
any of the parties to the proceeding before pronouncement of the judgment.
The Hon’ble Supreme Court in the case of Smt. Sureshta Devi –v- Om
Prakash, reported in AIR 1992 SC 1904, has categorically held at
paragraph-13 as follows:
“13. From the analysis of the Section, it will be apparent that the
filing of the petition with mutual consent does not authorise the
court to make a decree for divorce. There is a period of waiting
from 6 to 18 months. This interregnum was obviously intended to
give time and opportunity to the parties to reflect on their move
and seek advice from relations and friends. In this transitional
period one of the parties may have a second thought and change
the mind not to proceed with the petition. The spouse may not be
party to the joint motion under sub-section (2). There is nothing
in the Section which prevents such course. The Section does not
provide that if there is a change of mind it should not be by one
party alone, but by both. The High Courts of Bombay and Delhi
have proceeded on the ground that the crucial time for giving
mutual consent for divorce is the time of filing the petition and
not the time when they subsequently move for divorce decree.
This approach appears to be untenable. At the time of the
petition by mutual consent, the parties are not unaware that
their petition does not by itself snap marital ties. They know that
they have to take a further step to snap marital ties. Sub- section
(2) of Section 13-B is clear on this point. It provides that "on the
motion of both the parties .... if the petition is not withdrawn in
the meantime, the Court shall...... pass a decree of divorce..”
What is significant in this provision is that there should also
be mutual consent when they move the court with a
request to pass a decree of divorce. Secondly, the Court shall be
satisfied about the bonafides and the consent of the6
parties. If there is no mutual consent at the time of the enquiry,
the court gets no jurisdiction to make a decree for divorce. If the
view is otherwise, the Court could make an enquiry and pass a
divorce decree even at the instance of one of the parties and
against the consent of the other. Such a decree cannot be
regarded as decree by mutual consent.”
Further, it has been held therein that the consent must continue
to decree nisi and must be a valid consent when the case is heard. Thus,
the consent given by the parties in the petition under Section 13-B of the
Act, 1955 must remain alive till the judgment is pronounced. If, at any
stage interregnum, any of the parties resiles from the consent so given, then
a decree under Section 13-B of the Act, 1955 cannot be passed.
11. In the case at hand, the respondent (wife) resiled from her
consent given in the petition under Section 13-B of the Act, 1955 on the
ground that she had not received the permanent alimony as agreed upon
between the parties. That, in our considered view, is relevant to be
considered. Thus, we find no infirmity or illegality in the impugned order.
 HIGH COURT OF ORISSA: CUTTACK.
 MATA NO. 8 OF 2016

Sri Pravakar Muduli 
 V
Smt.Satyabhama Muduli 
 Date of Judgment :16.09.2016

PRESENT:
  SHRI JUSTICE VINOD PRASAD
AND
 SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC) 4 Orissa

Print Page

Whether lease get terminated if leasehold premises is destroyed?

 In the decision reported in Kalpakam Amma Vs.

   Muthurama Iyer [1994 (2) KLT 424], it has been



  held that when there is a lease of a building, such lease

  would normally take in the site unless it is specifically

  excluded.        It is also stated in the decision that

  destruction of the building does not automatically

  terminate the lease and put an end to landlord-tenant

  relationship. Since there were conflicting decisions on

  the question as to whether on the destruction of the

  subject matter of the lease, whether the lease will come

  to end, it was referred to a larger Bench of the Apex

  Court and the Three Judges Bench of the Apex Court in

  Shaha Ratansi Khimji Vs. Proposed Kumbhar Sons

  Hotel Pvt.Ltd. [2014 (3)KLT 1014 (SC)] held that

  once the right of lease is transferred in favour of the

  lessee, the destruction of a building constructed on the

  lease property does not determine the tenancy rights of

  occupant which is incidental to the contract of lease

  which continues to exist between them.    
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                      MR. JUSTICE K.RAMAKRISHNAN

                 1ST DAYOF AUGUST 2016.

                               CRP.No. 139 of 2016 

               MOHANDAS K.B.,
                  
                SYAMALA,
                    Citation: AIR 2017 (NOC)1 Ker

Print Page

Whether husband can obtain information about salary of wife under right to information Act?

The case of the petitioner before this Court is that
her husband (respondent No. 8) is seeking personal information
of the petitioner under Right to Information Act, 2005 (in short
“RTI Act”), and these information are being given to him by the
concerned authority. The contention of the petitioner before
this Court is that the information sought by her husband are
not covered under the RTI Act, as the information being sought
are relating to her salary, posting etc., which are personal in
nature.
Perused the information sought by the informant
from the department. The information sought are as to how
many teachers are working. The salary being given to the
petitioner etc. These information do not appear to be private in
nature in any manner nor are they exempted under the RTI
Act. Nothing has been shown by the petitioner, which may 
suggests that the information sought by the respondent,
relating to the petitioner, is covered under Section 8(1)(j) of RTI
Act.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 2489 of 2016

Jasmeet Kaur. Vs  State of Uttarakhand & others.

Hon’ble Sudhanshu Dhulia, J.
Citation: AIR 2017 UTTAR 1

Print Page

Whether execution of document can be proved by proving signature on document?

 

Plaintiff has also examined the expert witness PW-3-Devendra

Parsad, the handwriting expert to establish that the family settlement

(Ex.P-1) bears the signatures of the defendant. It is the settled principle of

law that the expert evidence is only an opinion. It could just corroborate

the substantive evidence. The expert evidence cannot substantiated the

execution of the document. It is also the settled principle of law that mere

proof of signatures cannot establish the due execution of a document. So,

the expert evidence adduced by the plaintiff-appellant will not be of much

consequence to establish the due execution of the family settlement

(Ex.P-1) and to explain the suspicious circumstances surrounding it.

IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

Print Page

Whether it is necessary to remove suspicious circumstances for proof of family settlement?

 The presence of PW-4-Harbans Singh at the time of

execution of the family settlement (Ex.P-1) is not believable. He has

deposed that the document Ex.P-1 was not typed in his presence. He did

not remember that where the document was typed. He further deposed

that the same was signed at petrol pump of Udhampur, but he did not

remember who was the owner of the said petrol pump. He even did not

remember the trade name of said petrol pump. He admitted that no money

transaction took place in his presence. He is the father-in-law of the

plaintiff. Even as per the case of the plaintiff, this family settlement was

executed 2-3 days after his marriage. So, it is not believable that such a

new relative will be roped in such affairs of the family. If in-fact, any

family settlement would have taken place between the parties, it must

have been signed at least by their father, sisters and other family

members, who must be present in the house due to the occasion of the

marriage of the plaintiff. There was also no reason to attest the family

settlement (Ex.P-1) by PW-4-Harbans Singh at the petrol pump, rather

then the house of the plaintiff. The plaintiff also could not tell the name

of the typist and he took the plea that the same was got typed by the

defendant.

25. It is further the settled principle of law that Court can only

act upon on the clear, categoric and unequivocal admission of the parties

to arrive at the conclusion. The vague or the retracted admission carries

no evidentiary value. In the instant case, though initially the defendant in

his part cross-examination has stated that the signatures on the family

settlement looks like his signatures, but in the same breath he added that

these are not his signatures. So, there is no admission on the part of the

defendant that the family settlement (Ex.P-1) bears his signatures. Thus,

the family settlement (Ex.P-1) is surrounded by various suspicious

circumstances, which negates the valid execution thereof. Consequently,

the plaintiff has not been able to establish the genuineness and valid

execution of the family settlement (Ex.P-1) by the defendant.
IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation: AIR 2017 P&H 3

Print Page

When family settlement is compulsorily registrable?

The tenor of the aforesaid document shows that the right in

the property has been created for the first time in favour of the plaintiff

through the family settlement (Ex.P-1), the plot in question was allotted

to defendant from the defence quota being an Army Officer. As already

discussed, it is not established that the plaintiff has paid or contributed

any amount for the purchase of the said plot, so he was not having any

pre-existing rights in the said plot. So, the family settlement (Ex.P-1) was

compulsorily registrable, but the same is an unregistered document, hence

the same is in admissible in evidence and will not convey any right, title

or interest in the suit property in favour of the plaintiff. Thus, he cannot

claim himself to be the owner in possession of the plot in dispute to the

extent of 50% share by the dint of the family settlement Ex.P-1.

IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation: AIR 2017 P&H 3

Print Page

Whether arbitration proceeding is tenable even though reference made by sick company is pending with BIFR?

Hon'ble Apex Court in the case of San-A Tradubg Co. Ltd. v. I.C. Textiles Ltd. decided on 28.4.2006 has considered the same and held as under:

"Similarly, in Shree Chamundi Mopeds Ltd. v. Church of South India, MANU/SC/0501/1992 : AIR 1992 SC 1439, this Court explained the words 'or the like' as follows:

"The words 'or the like' have to be construed with reference to the preceding words, namely 'for execution', 'distress' which means that the proceedings which are contemplated in this category are proceedings whereby recovery of dues is sought to be made by way of execution, distress or similar proceedings against the property of the Company."

It is, thus, apparent from the wording of Section 22(1) and the above decisions of this Court that the proceedings covered under Section 22 are the proceedings of coercive nature, be that legal or otherwise, which would come within the purview of expression 'proceedings' as mentioned in the Section but it would not cover all proceedings. Section 22 (1) incorporated certain types of proceedings which would fall within its ambit and which are the proceedings for winding up of the industrial company or the proceedings for execution and distress against any of the properties of the industrial company or the proceedings for the appointment of a Receiver in respect of the properties of the industrial company. From the nature of the proceedings referred to in this Section, it is clear that only the proceedings which have the shape and effect of coercive nature would come within the ambit of Section 22(1) and for taking up such proceedings the permission of BIFR is required. By Act 12 of 1994, Section 22(1) was amended by insertion whereby a suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advances granted to the industrial company would not be maintainable unless consent of BIFR is obtained. In Kailash Nath Agarwal and others v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. and another MANU/SC/0114/2003 : (2003) 4 SCC 305 : (AIR 2003 SC 1886), the question arose as to the scope of the protection afforded to the guarantors under Section 22(1) of SICA. The company was declared sick by BIFR in terms of Section 3(1)(o) of SICA. An operating agency was appointed under Section 17(3). While the proceedings before BIFR were pending, three separate notices of demand were served on the appellants as personal guarantors in respect of the loans granted to the company by the respondent Pradeshiya Industrial & Investment Corporation of U.P. Ltd. and it was said in the notices that the Corporation would take legal measures to recover its outstanding dues from each guarantor. It was contended by the guarantors that in view of Section 22(1) of SICA, the Corporation could not enforce its demand against the appellants under the permission of BIFR is obtained. This Court has drawn a distinction between the proceedings taken up under the U.P. Public Moneys (Recovery of Dues) Act, 1972 and a suit contemplated under Section 22 of SICA. This Court has held in Kailash Nath Agarwal (supra) that having regard to the judicial interpretation of the word 'suit', it is difficult to accede to the submission of the appellants that the word 'suit' in Section 22(1) of SICA means anything other than some form of curial process and the Court found it difficult to widen the scope of the word 'suit' so as to cover proceedings against the guarantor of an industrial company. By virtue of amendment to Section 22 of SICA, no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advances granted to the industrial company, shall he and adjudication is prohibited of the liability of the industrial company or the guarantor. Section 22 further prohibits taking up of the proceedings of the nature which would be coercive for recovery of money against a sick undertaking. Proceeding in arbitration is neither a suit under sub-section (1) of Section 22 of SICA nor the proceedings thereunder and, therefore, there is no prohibition under Section 22 of SICA to take up the arbitration proceedings to adjudicate the liability of the parties to the arbitration proceedings. In my view, Section 22 of SICA does not debar the arbitration proceedings under the Arbitration and Conciliation Act, 1996. The objections to the arbitration proceedings raised by the respondent fail for the aforesaid reasons and are rejected."

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

A.C. No. 18 of 2015

Decided On: 01.12.2016

TDB Spinners Pvt. Ltd.

Vs.

 Parasram Puria Internatin

Hon'ble Judges/Coram:

J.K. Maheshwari, J.

Citation:AIR 2017 MP 1

Print Page

Whether two simultaneous execution application filed by decree holder against two Judgment Debtors is tenable?

 Order 21 Rule 11 CPC does not bar simultaneous executions.-A decree holder would be entitled to file two execution petitions for realizing or recovering the decretal amount due from two judgment debtors, when judgment and decree passed against them is joint and several. [20] and [21]

(a) However, in case of two execution petitions being filed namely, one for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor, then in such a situation, executing Court may refuse execution against the person and property of said judgment debtor at the same time as indicated in Order 21 Rule 30 CPC. [20]

(b) The reasoning adopted by the Executing Court either in holding that two simultaneous execution petitions filed by the decree holder against the principal debtor and the guarantor is not maintainable or directing the decree holder to amend the execution petitions so as to conform the claim made in two simultaneous execution petitions would not exceed the decretal amount put together cannot be sustained. [21]

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

W.P. Nos. 32399, 32400, 32402, 32403, 32404, 32401 and 32405/2015 (GM-CPC)

Decided On: 29.04.2016

 PAFCO 2916 INC. and Ors.

Vs.

Kingfisher Airlines Limited and Ors.

Hon'ble Judges/Coram:

Aravind Kumar, J.

Citation: AIR 2017 karnat 10

Print Page

Whether disputes under copyright Act can be referred to Arbitration?

    

 In para-35 of its judgment in Booz Allen & Hamilton Inc.,
the Supreme Court held that every civil or commercial dispute,
either contractual or non-contractual, which can be decided by
a Court, is in principle capable of being adjudicated and
resolved by arbitration unless the jurisdiction of the Arbitral
Tribunals is excluded either expressly or by necessary
implication.
     The Supreme Court further held that adjudication of
certain categories of proceedings are reserved by the legislature
exclusively for public fora as a matter of public policy and
certain other categories of cases, though not expressly reserved
for adjudication by public fora (Courts and Tribunals), may by
necessary implication stand excluded from the purview of
private fora. It was further held that consequently, where the
cause/dispute is inarbitrable, the Court where a suit is pending,
will refuse to refer the parties to arbitration, under Section-8 of
the Act, even if the parties might have agreed upon arbitration
as the forum for settlement of such disputes.
     No provision of the Copy Right Act is brought to our
notice by which adjudication of the disputes arising therein by
an arbitrator is barred either expressly or by implication.
     If we understand the provisions of Section-62 of the Copy
Right Act and also Sub-section-(3) of Section-2 of the
Arbitration Act in the light of the judgment of the Supreme
Court in Booz Allen & Hamilton Inc (supra), while there is no
express bar under the Copy Right Act, it requires to be seen
whether the dispute raised by respondent No.1 falls within the
well recognised exceptions of non-arbitral disputes referred by
the Supreme Court in para-36 of the judgment, which were
referred to herein before.
     Though the categories of cases referred by the Supreme
Court in Booz Allen & Hamilton Inc. (supra) may be understood
as illustrative, the fact, however, remains that the disputes under
the Copy Right Act are not included in the category of non-
arbitrable disputes.
     The Supreme Court has recognised those categories of
cases as relating to actions in rem as contrasted from a right in
personam and that, all such cases which fall in the former
category have to be necessarily decided by the public fora i.e.,
Courts and Tribunals.

     Though the learned counsel for respondent No.1 has
submitted that the Copy Right is a right in rem, he failed to
support his submission by placing before us any judgment in
this regard.

     In M/s Sundaram Finance Limitd Vs. T.Thankam , the
Supreme Court held that once an application in due compliance
of Section-8 of the Act is filed, the approach of the civil Court
should be not to see whether the Court has jurisdiction and it
should be to see whether the jurisdiction has been ousted.

     Having considered the facts of the case and the legal
position, as discussed above, we have no hesitation to hold that
the entire dispute raised by respondent No.1 in the suit before
the lower Court is an arbitrable dispute within the meaning of
Clause-29 of the Manufacturing Agreement between the parties 
and therefore, the suit was not maintainable.
HYDERABAD HIGH COURT
CIVIL REVISION PETITION No.1494 of 2016    
Dated:21-7-2016 
M/s Impact Metals Ltd., Bollaram and another.
V
M/s MSR India Ltd., Hyderabad and two others. 

Coram
 SRI JUSTICE C.V.NAGARJUNA REDDY          
AND  
 SRI JUSTICE G.SHYAM PRASAD         
        Citation: AIR 2017 Hyder 12

Print Page

Whether court can consider documents filed along with plaint for determination of court fees?

  In MIRZA RAHEEM BAIG V/s. MIRZA MAHAMOOD BAIG           
AND OTHERS , the suit was filed for partition, separate
possession and for cancellation of the registered gift deeds.  The
trial Court observed that the documents filed showed that the
possession of the property was not joint and accordingly directed
payment of court fee under Section 34(1) of the Act of 1956. This
Court held the approach of the trial Court in that case to be wrong,
opining that in a suit for partition, the court fee must be
determined on the basis of the averments made in the plaint and
at that stage the Court is not entitled to travel beyond the plaint
averments.  This Court held that the finding of the trial Court,
basing on the pahanies, that the plaintiff was not in joint
possession of the suit property was completely erroneous in law
and that such a finding could have been rendered only after the
trial of the suit.
        Perusal of the docket order under revision reflects that the
aforestated three decisions were cited before the trial Court.
Notwithstanding the same, the trial Court was of the opinion that
the sale deeds said to have been executed by the 1st, 2nd and 3rd
defendants showed that possession was delivered to third parties
and therefore, the petitioners/plaintiffs could not claim to be in
possession.  It is therefore manifest that the trial Court did not
limit its consideration to the plaint averments but examined the
contents and merits of the suit documents.  When the
petitioners/plaintiffs specifically averred that the alienation
effected under the sale deeds was a sham and nominal one and 
that it was not binding upon them, the trial Court could not have
gone by the contents of the said documents to the exclusion of the
plaint averments, which read to the effect that the property in
question was a joint family property and that without prior
partition, the share falling to the lot of the petitioners/plaintiffs
had been alienated unlawfully.  As to what would be the impact of
such alienation on the joint possession claimed by the petitioners/
plaintiffs was a matter which essentially fell for consideration
during the trial. 
HYDERABAD HIGH COURT
THE HONBLE SRI JUSTICE SANJAY KUMAR         

CIVIL REVISION PETITION NO.4508 OF 2016     

DATED:28-10-2016 

N.Savithri and others 
V
N.Hanmappa and others


Citation: AIR 2017 Hyder 1

Print Page

Whether husband can get divorce on ground of desertion if he fails to visit flat taken on rent by wife?

 If one fine morning the appellant/husband took the decision not to
visit his wife and daughter at the flat where they were staying which in fact
became their matrimonial home, then how he can be rewarded with a decree
of divorce on the ground of desertion when he himself has deserted his wife.
IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated: August 29, 2016
 MAT.APP.(F.C.) 49/2014
ANIL KUMAR SHARMA 
v
MANJU SHARMA 
CORAM:
 MR. JUSTICE PRADEEP NANDRAJOG
 MS. JUSTICE PRATIBHA RANI
Citation: AIR 2017 Delhi 3

Print Page

Whether husband can prove that wife caused cruelty to his relatives without examining them?

 To prove the accusation of humiliation caused to other family
members of the appellant/husband, we find that none of the family members
has been examined as witness with any specific act attributed to the
respondent/wife which can be termed as cruelty for purpose of seeking
divorce. While the appellant/husband has appeared as PW-1, he examined
his neighbour Sh.Om Prakash as PW-2 and Sh.A.K.Gaur – his brother-inlaw
as PW-3. None of these two witnesses deposed about any incident
which could prove any act of cruelty being committed by the 
respondent/wife till she stayed at her matrimonial home.
IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated: August 29, 2016
 MAT.APP.(F.C.) 49/2014
ANIL KUMAR SHARMA 
v
MANJU SHARMA 
CORAM:
 MR. JUSTICE PRADEEP NANDRAJOG
 MS. JUSTICE PRATIBHA RANI
Citation: AIR 2017 Delhi 3

Print Page

Whether decree for permanent alimony extinguishes with death of husband?

In the matter of Mrs. Aruna Basu Mullick vs. Mrs.
Dorothea Mitra AIR 1983 SC 9164,
 it has been held by the Supreme Court
that a decree for alimony passed under Section 37 of the
Special Marriage Act, 1954 does not extinguish with the
death of the husband/judgment debtor. The assets left
behind by him are liable to be proceeded against in the
hands of his legal heirs for satisfaction of the decree for
maintenance. It is further held that there is no rationality in

the contention that a decree for maintenance or alimony
gets extinguished with the death of the husband when any
other decree even though not charged on the husband's
property would not get so extinguished. A decree against the
husband is executable against the estate of the husband in
the hands of the heirs and there is no personal liability.
6. By the impugned judgment, the Executing Court has held
the appellants to be liable to pay the amount of permanent
alimony of Rs.2,000/- to the respondent. The proper course
for the Executing Court should have been to direct the
parties to provide full particulars of all the movable and
immovable properties belonging to the deceased so that the
amount of permanent alimony, which is a charge on the
estate of the deceased, is recovered from those properties
because the appellants may not be personally liable to pay
permanent alimony to the respondent, but they are liable
because they are in possession of the assets of the
deceased.
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 103 of 2015
 Arial I Kumar S/o Late Ismail Kumar (Dead) 
V
 Shrimati Shikha Kumar W/o Late Arial I Kumar 
Coram:
Hon'ble Shri Justice Prashant Kumar Mishra
Hon'ble Shri Justice Anil Kumar Shukla
Dated: 07/11/2016
Citation: AIR 2017 Chhatis 7

Print Page

Whether it is necessary to implead all legal heirs of deceased tenant in execution proceeding?

Following H.C. Pandey (supra), the Supreme Court in
Ashok Chintaman Juker (supra), held that decree passed
in suit for eviction is binding on all members of original
tenant's family who are covered by tenancy and when the
deceased tenant had two sons, the impleadment of son who
was residing in the tenant premises would be sufficient for
execution of decree and the other son not residing in the
premises is not required to be impleaded, there being no
such interest of making him a party to the eviction
proceeding. 
 In view of the foregoing, the law appears to be settled by the
Supreme Court in umpteen number of decisions that in the
event of death of original tenant, the tenancy devolves on
the legal heirs as joint tenants, therefore, even when only
one of the legal heirs of the deceased tenant, who is in
possession of the property, is impleaded in execution
proceedings, the Executing Court should proceed with the
execution instead of directing the decree holder to implead
other legal heirs of the tenant.
16. At this juncture, it is informed by the learned counsel
appearing for the petitioner that one of the other legal heirs
resides in America (USA), therefore, if the trial Court's order
is complied the execution of the decree will be impossible
and, thus, the impugned order, if it is allowed to stand would
occasion failure of justice.
17. This Court is fully convinced with the submission made by
the learned counsel appearing for the petitioner that since in
view of the settled legal position, it would not be necessary
to implead all the legal heirs of the deceased tenant to be
joined in the execution proceedings, if the impugned order is
allowed to stand, it would occasion failure of justice,
therefore, it deserves to be quashed by this Court in
exercise of its power of superintendence under Article 227.

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment delivered on 02-12-2016
WP227 No. 301 of 2016

 Anil Gupta V  Thamman Singh 

Hon'ble Shri Justice Prashant Kumar Mishra
Citation: AIR 2017 chhatis 1

Print Page

Whether court can decide legal question if it is not pleaded?

 It is true that in the written statement the claim was not made by the defendant that the wife was in a fiduciary relationship with her husband and on that score the learned Advocate on behalf of the appellant submitted that this ground cannot be taken up by this court. I am sorry to say that this being one legal question it is immaterial whether it was urged in the pleading. Thus, the argument of Mr. Chatterjee on this point is not convincing to this court and answered in the negative.

IN THE HIGH COURT OF CALCUTTA

S.A. 577 of 2008

Decided On: 02.09.2016

 Debika Chakraborty  Vs. Pradip Chakraborty

Hon'ble Judges/Coram:

Indrajit Chatterjee, J.

Citation: AIR 2017 Calcutta 11

Print Page