Whether executing court can correct award of Lok Adalat?

 In Bhavan Vaja and others (supra), the Hon'ble Supreme Court has observed that it is the duty of the Executing Court to find out the true effect of a decree as passed though it cannot go behind such decree in the execution proceedings. For construing a decree, the Executing Court can take into consideration the pleadings as well as the proceedings leading up to the decree. That is the plain duty of the Executing Court. In Darshan Singh (supra) it has been observed that the corrections contemplated under Section 152 of the Code are only accidental omissions or mistakes. A clerical mistake is a mistake in writing or typing and the same can be duly corrected in exercise of that power. As noted above in the present case the compromise memo has been correctly prepared and it is only the award which contains an erroneous reproduction of Clause 2 of the compromise memo. The mistake is therefore accidental as well as clerical in nature. The observations in Tulashiram Nivarutthi Shendge (supra) that even in the matters of the present type, the Executing Court can exercise powers under Section 152 of the Code for correcting an award support the case of the respondent No. 1.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 02 of 2019

Decided On: 14.03.2019

Dhanraj Dnyaneshwar Koche  Vs. Rajiv Ramdattaji Batra and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(4) MHLJ 664

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Whether second wife is entitled to get family pension?

That from the aforesaid discussion, I hold and conclude:

(i) marriages covered by Section 11 of the Hindu Marriage Act are void i.e. void from inception and have to be ignored as not existing in law at all when such a question arises.

(ii) a woman performing the marriage with a Hindu Government servant during the lifetime of his wife cannot be said to be his "widow".

(iii) definition of "Family" under sub-rule 16 of Rule 116 of the Maharashtra Civil Services (Pension) Rules, 1982 includes only wife and a judicially separated wife with a rider that judicial separation is not granted on the ground of adultery.

(iv) expression "Family pension is payable to more widows than one" in terms of sub-rule (6) clause (a) of Rule 116 of the Maharashtra Civil Services (Pension) Rules, 1982 cannot be read in isolation but has to be read and understood in context of definition of "Family" defined under Rule 116(16) (b) of the Maharashtra civil Services Pension Rules, 1982, in as much as, pension is payable to the "Family of deceased",

(emphasis supplied).

Thus, taking into consideration the provisions of the scheme of "Family pension" under Rule 116 and the definition of "Family", I hold that a Hindu woman who marries a Hindu man during the subsistence of his first marriage is excluded from the scheme of Rule 116 of the Maharashtra Civil Services Pension Rules and thus not entitled to the family pension. I therefore answer Question no. 1 in negative.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 463 of 2014 and Civil Application No. 1067 of 2014

Decided On: 28.02.2019

 Kamal Mahaling Patil Vs.  Indubai Mahaling Patil and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 594

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Factors to be considered by court while allowing legal representative of plaintiff on record

From the perusal of the impugned order, it is apparent that the learned trial Judge has not even applied mind so as to whether the right to sue survives or not. Besides, from the perusal of the impugned order, it is not clear as to whether the learned trial Judge has accepted the position as to whether the respondent herein is indeed a legal representative of the deceased plaintiff. At least all this is not reflected from the reading of the impugned order which contains no reasons whatsoever. On the issue as to whether the right to sue survives or not, the petitioner, in the present case, ought to have been heard. Besides, although it is true that the learned trial Judge, at this stage is not expected to go into contentious issues relating to the title, at least prima facie verification as to whether the respondent is the legal representative or nor was required to be made by the learned trial Judge. Since, there is no application of mind on all these relevant aspects, the impugned order dated 3rd September, 2018 is liable to be set aside and is hereby set aside.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 925 of 2019

Decided On: 13.03.2019

 Swapnesh Bhupati Mudliyar Vs.  Subhashchandra Dhondu Narvekar

Hon'ble Judges/Coram:
M.S. Sonak, J.

Citation: 2019(4) MHLJ 892

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Whether evidence of attesting witness can be discarded if he has not read the content of will?

I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

19. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 538 of 2015 and Civil Application No. 353 of 2012

Decided On: 01.03.2019

 Chandrakala Krishna Dhole Vs.  Bhimrao Dattu Kadam and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 949

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Whether the court can take into consideration the acts of the wife after filing of the divorce petition to show a pattern in her behaviour and conduct?

The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husband's freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.

Supreme Court of India

A. Jayachandra vs Aneel Kaur on 2 December, 2004

Bench: Ruma Pal, Arijit Pasayat, C.K.Thakker

           CASE NO.:
Appeal (civil)  7763-7764 of 2004

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Whether licensee can claim injunction against licensor to restrain him from dispossessing him?

If we examine the Easements Act, Section 63 speaks of the licensee's rights on revocation; it is profitable to extract it:

"63. Licensee's rights on revocation.--Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property."

50. From the above statutory extract, it is clear that a licensee, on revocation of license, is entitled to a reasonable time to leave the property. It does not contemplate eviction by due process. And, in fact, that waiting period is the due process, so to speak. The reason for this proposition, even de hors the statutory support, is not far to seek: a license creates no interest in the property; the seisin remains with the owner. In other words, the licensee only may use the immovable property, with no actual transfer of the very property.

51. Then, Sakkeer quoted with approval Chandu Lal v. MCD MANU/DE/0024/1978 : AIR 1978 Delhi 174 (FB), a Full Bench decision of Delhi High Court. In fact, Chandu Lal, as noted by Sakkeer, has held that a bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property, but is only a personal privilege. The license terminated, the licensor may deal with the property as he likes. This right he gets as the owner in possession of his property. He need not secure a decree of the Court to obtain this right.

52. Chandu Lal notes that a licensor can use reasonable force to secure or protect his possession. If he, however, uses excessive force, he may make himself liable to be punished under a prosecution, but he will infringe no right of the licensee. Then, it acknowledges that a person in exclusive possession of the property, no doubt, is prima facie considered a tenant, but he would not be held to be so if the circumstances negative any intention to create a tenancy.

53. Settled as the above proposition of law has been, if we further examine, Section 64 of the Easements Act provides for the consequences that follow forceful eviction. It is profitable to extract Section 64:

"64. Licensee's rights on eviction. - Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor."

54. It is explicit from Section 64 of the Easements Act that if a licensee has been evicted by the grantor for no fault of his, the remedy of the licensee is not restoration, but only restitution. Thus, the common law cannon of restoration ends in the face of statutory stipulation.

 Prima facie, I reckon the LL Agreement, dated 28th February 2010, is a license; it has come to an end; and the licensee's possession is permissive. The licensee's claim that it has exercised its option of renewal is a matter for trial. The property belongs to a society, which pleads that it has gone for the best, most lucrative offer of license from a third party and that is in the interest of the society, whose structures need, as it puts, much upkeep. Thus, the balance of convenience, too, lies in the licensor's favour. About the irreparable loss, first the licensee cannot be said to be possessing the property; in fact, it has not even alleged that the licensor has tried to dispossess it. And any loss it may sustain without its having the injunctive relief is a matter of reparation: it can be compensated. That is, it is no irreparable loss.

61. Thus, all the three cardinal principles of injunctive relief--prima facie case, balance of convenience, and irreparable loss or hardship--are not in the licensee's favour.

So I reverse the findings of the Appellate Bench of the Small Cause Court and set aside the Order, dated 21st September 2018. As a result, the licensee's application for injunction stands rejected.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 12033 of 2018

Decided On: 03.07.2019

New Shivam Co-op. Hsg. Society Ltd. Vs.  Raj Publicity, Bandra (W)

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation:   MANU/MH/1803/2019 

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Question and answer in law Part 3

Q.1. What is meaning of endorsement of cheque in blank?

Ans;In the case of a check payable to John Smith (the payee), a blank endorsement would be the signature of John Smith on the back side of the check without any other words above or below his signature. ... The blank endorsement indicates that whoever is in possession of the endorsed check is considered to be the owner.See S 16 of NI Act.

Q.2. Define constructive res judicata?

Ans. Constructive res judicata is a subset of the doctrine of res judicata. Constructive res judicata sets to bar any claims being raised in a later proceeding if the claim should / ought to have been raised and decided in an earlier proceeding.

Q 3. Why there are different orders and sections in Civil Procedure Code?

Ans.The Code is divided into two parts: the first part contains 158 sections and the second part contains the First Schedule, which has 51 Orders and Rules. The sections provide provisions related to general principles of jurisdiction whereas the Orders and Rules prescribe procedures and method that govern civil proceedings in India.

4. Which article in constitution provides right against self incrimination?
A.Clause (3) of Article 20 of Indian constitution declares that no person accused of an offence shall be compelled to be a witness against himself. 3. it is a protection against such compulsion resulting in his giving evidence against himself.

5.What is Civil contempt and criminal contempt?

A. Contempt refers to the offence of showing disrespect to the dignity or authority of a court.  The Act divides contempt into civil and criminal contempt.  Civil contempt refers to the wilful disobedience of an order of any court or wilful breach of an undertaking given to a court;.  Criminal contempt includes any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner.  ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary. 

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Whether appeal from conviction given by assistant session Judge lie to session court?

On perusal of the impugned judgment and order it reveals that the aforesaid order was passed by learned Assistant Sessions Judge and the Section 374(3)(a) of the Code provides that the appeal from convictions given by the learned Assistant Sessions Judge will lie to the Court of Sessions. Although, the present appeal is not intended against the order of conviction but the same provision have to follow as regards the forum to whom the appeal lies. Obviously, against the order of the learned Assistant Sessions Judge appeal will not lie to the High Court by skipping the forum.

In the High Court of Gauhati

(Before Rumi Kumari Phukan, J.)

Akhtar Mirza v. State of Assam

Crl.L.P 136/2018

Decided on May 14, 2019

Citation: 2019 SCC OnLine Gau 2295 : (2019) 6 Gau LR 386

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Additional guidelines of Supreme Court on Acid attack

 The Guidelines issued by orders in the Laxmi's case are proper, except with respect to the compensation amount. We just need to ensure that these guidelines are implemented properly. Keeping in view the impact of acid attack on the victim on his social, economical and personal life, we need to enhance the amount of compensation. We cannot be oblivious of the fact that the victim of acid attack requires permanent treatment for the damaged skin. The mere amount of Rs. 3 lakhs will not be of any help to such a victim. We are conscious of the fact that enhancement of the compensation amount will be an additional burden on the State. But prevention of such a crime is the responsibility of the State and the liability to pay the enhanced compensation will be of the State. The enhancement of the Compensation will act in two ways:

1. It will help the victim in rehabilitation;

2. It will also make the State to implement the guidelines properly as the State will try to comply with it in its true sprit so that the crime of acid attack can be prevented in future.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 867 of 2013 

Decided On: 07.12.2015

 Parivartan Kendra Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

M. Yusuf Eqbal and C. Nagappan, JJ.

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Supreme Court Guidelines on Acid Attack

 We, therefore, issue a direction that the State Governments/Union Territories should seriously discuss and take up the matter with all the private hospitals in their respective State/Union Territory to the effect that the private hospitals should not refuse treatment to victims of acid attack and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries.

18. We also issue a direction that the hospital, where the victim of an acid attack is first treated, should give a certificate that the individual is a victim of an acid attack. This certificate may be utilized by the victim for treatment and reconstructive surgeries or any other scheme that the victim may be entitled to with the State Government or the Union Territory, as the case may be.

19. In the event of any specific complaint against any private hospital or government hospital, the acid attack victim will, of course, be at liberty to take further action.

20. With regard to the banning of sale of acid across the counter, we direct the Secretary in the Ministry of Home Affairs and Secretary in the Ministry of Health and Family Welfare to take up the matter with the State Governments/Union Territories to ensure that an appropriate notification to this effect is issued within a period of three months from today. It appears that some States/Union Territories have already issued such a notification, but, in our opinion, all States and Union Territories must issue such a notification at the earliest.

21. The final issue is with regard to the setting up of a Criminal Injuries Compensation Board. In the meeting held on 14.03.2015, the unanimous view was that since the District Legal Services Authority is already constituted in every district and is involved in providing appropriate assistance relating to acid attack victims, perhaps it may not be necessary to set up a separate Criminal Injuries Compensation Board. In other words, a multiplicity of authorities need not be created.

22. In our opinion, this view is quite reasonable. Therefore, in case of any compensation claim made by any acid attack victim, the matter will be taken up by the District Legal Services Authority, which will include the District Judge and such other co-opted persons who the District Judge feels will be of assistance, particularly the District Magistrate, the Superintendent of Police and the Civil Surgeon or the Chief Medical Officer of that District or their nominee. This body will function as the Criminal Injuries Compensation Board for all purposes.

IN THE SUPREME COURT OF INDIA

Writ Petition (C) No. 129 of 2006

Decided On: 10.04.2015

Laxmi Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and U.U. Lalit, JJ.

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Whether court can grant enquiry for mesne profits even without prayer in this regard?

I do not find any substance in the submission of learned counsel for the appellant-UCO Bank that the respondents-original plaintiffs did not pray for such an inquiry for the mesne profit under Order 20, Rule 10 of the Code of Civil Procedure and in absence of a specific prayer for inquiry into mesne profit, the Trial Court while deciding Small Cause Suit No. 39 of 2001, directed an inquiry into mesne profit under Order 20, Rule 10 of the Code of Civil Procedure. Even in the case of Gulamhusain Asgaraly Vahanvaty (MANU/MH/0600/2011 : 2011 (4) Bom CR 169) (supra), relied upon by learned counsel for appellant-UCO Bank, this Court has taken a view that the relief of mesne profits is a consequential relief to the main relief and the trial court has to pass an order of holding inquiry into mesne profit when the suit is decreed. If such a suit for recovery of possession is dismissed, the question of payment of mesne profits does not arise and therefore, very often, issue of mesne profits is not framed since there is an independent provision in the CPC for holding an inquiry for mesne profits, and only when the suit is decreed further consequential relief is to be granted.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 652 of 2006

Decided On: 03.05.2016

UCO Bank, Vs.  Asaram Mohanlal Samdani and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav, J.

Citation: 2017(2) ALLMR 92

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When court should not entertain premature suit?

I have given due consideration to the respective submissions. The facts on record indicate that the respondent who is the landlord had issued a notice to the tenant on 11-2-2008 demanding arrears of rent. This notice was served on the tenant on 19-2-2008 but the same was not complied. The suit was filed on 1-3-2008. In this factual background, the aspect whether the petitioner can be permitted to raise the plea that the suit as filed was before expiry of the statutory period of ninety days from service of the demand notice deserves to be considered.

The provisions of section 15(2) of the said Act read thus:

Section 15(2): No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

What has been prohibited is the institution of a suit for recovery of possession against the tenant on the ground of non-payment of standard rent or permitted increases. Unless the period of ninety days has expired after service of the notice of demand on the tenant, such suit cannot be instituted. Hence there would be no jurisdiction with the Court to entertain a suit that has been instituted prior to the expiry of the statutory period of ninety days. In Vitthalbhai (P) Ltd. (supra) the Honourable Supreme Court considered the fate of a premature suit. In paragraph 22 thereof it was observed thus:

"... However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event: (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency."

The case in hand pertains to contingency No. (i) as contemplated by the Honourable Supreme Court. The said defect of premature institution also renders the presentation of the suit void thereby affecting the court's jurisdiction.

6. From the facts noted hereinabove, it is crystal clear that the suit was filed by the respondent prior to expiry of ninety days from the service of the demand notice. The presentation of the suit itself being void and going to the court's jurisdiction, the aforesaid plea would have to be permitted to be raised though it was not raised earlier. The aforesaid defect being incurable as the landlord could not have cured the said defect after filing the suit is without any doubt. Even if such plea was raised in the written statement, the defect in question was incurable. On the other hand if it is found that the Court has entertained the suit on the basis of presentation of the plaint which was patently void and affecting the jurisdiction of the Court, said legal plea would have to be permitted to be raised. This plea does not call for any factual adjudication as the date of service of the notice on the tenant and the date of presentation of the plaint are not in dispute. Moreover, the decree for eviction has been passed only on the ground of arrears of rent. The observations of learned Single Judge in paragraph 6 of the decision in Digambar Hari Sonpatki (supra) can be relied upon.

7. In view of aforesaid, the only conclusion that can be drawn from the aforesaid facts is that the suit for eviction was filed in a manner contrary to provisions of section 15(2) of the said Act. The trial Court had no jurisdiction to entertain such a prematurely instituted suit. The Appellate Court by dismissing the appeal also exercised jurisdiction thereby confirming the decree passed in the suit of which the trial Court could not have taken cognizance. The only inevitable result is that the decree passed by the trial Court as maintained by the Appellate Court is without jurisdiction.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 3788 of 2015

Decided On: 07.07.2016

 Jitendra Vs.  Mohanlal

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2017(2) ALLMR 69

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Whether court can give possession of suit premises to decree holder in execution of decree for specific performance of contract?

 The Apex Court has directly considered the question as to whether a prayer for possession could be made at the execution stage though such a prayer is not made in the plaint or at the appellate stage arising from the said suit in the case of Babulal (supra). In the said case, in the execution proceeding, the High Court for the first time directed the suit plaint to be amended so as to allow the prayer for possession of the suit premises.

11. The Apex Court in the said case has observed that it may not always be necessary for a plaintiff to claim a relief for possession in a suit for specific performance. It will all depend upon the circumstances of each case. While interpreting the provisions of the Specific Relief Act and Section 55 of the Transfer of Property Act, the Apex Court observed thus:

In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 55(1) of the T.P. Act which provides that the seller is bound to give, on being so required, the buyer or such other person as he directs such possession of the property as its nature admits.

12. The Apex Court, while considering the provision is of Section 28(3) of the Specific Relief Act, has observed thus:

Further Section 28(3) clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the Court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, Sub-clause (b) of Sub-section (3) of Section 28, contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of Section 28 bars the filing of a separate suit for any relief which may be claimed under this section. This is an additional reason why the Supreme Court should not interfere with the eminently just order of the High Court. The High Court had amended the decree passed by the first Appellate Court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner.

It is thus clear that the Apex Court has clearly held that in view of Sub-section (3) of Section 28 of the Specific Relief Act, it would be permissible for a party to claim a relief of possession or payment of the purchase money, as is ordered to be paid under the decree. If such payment is made and relief of possession is claimed, the Court would always be competent to grant such a relief. I further feel that, on the contrary, such a relief would be one which would result in granting appropriate, just and proper relief in favour of a person in whose favour decree for specific performance is passed. In that view of the matter, I do not find any error in the impugned order.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 1920 of 2005

Decided On: 27.02.2007

 Kisan Vs.  Ragho

Hon'ble Judges/Coram:

B.R. Gavai, J.

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Whether Dispossession of tenant by third party is dispossession of landlord?

 A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant. The view of Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. We find ourselves in agreement with the view of Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1930 of 2010

Decided On: 22.02.2010

Sadashiv Shyama Sawant  Vs. Anita Anant Sawant

Hon'ble Judges/Coram:

P. Sathasivam and R.M. Lodha, JJ.

Citation: (2010) 3 SCC 385

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Whether Muslim law recognize Adoption?

It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 83 of 2008

Decided On: 18.04.2017

 Dagadabai Vs.  Abbas

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2017) 13 Supreme Court Cases 705,2017(4) ALLMR 448 SC.

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Whether S 16 of Hindu marriage Act grants illegitimate child right in ancestral coparcenary property?

 So far as Section 16 of the Act is concerned, though it was enacted to legitimate children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents," In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further righter than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court deregulating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 7247 of 1995

Decided On: 20.12.2002

 Jinia Keotin Vs.  Kumar Sitaram Manjhi and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Shivaraj V. Patil, JJ.

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Whether suit dismissed on ground of res judicata will be decree even if it was passed without framing of issue?

 In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final. Rejection of a plaint is deemed to be a decree Under Section 2(2) of the Code. Only two orders are excluded-(i) any adjudication from which an appeal lies as an appeal from an order and (ii) any order of dismissal for default. Order XLIII of the Code has provided for appeals from orders. The impugned order does not come under Order XLIII. The order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, viz., Res Judicata. True, it is not an order passed on framing an issue. But at the same time, there is adjudication on the controversy as to whether the suit is barred by Res Judicata in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides.

15. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies Under Section 115 of the Code in view of the specific bar under Sub-section (2) thereof. It is only appealable Under Section 96 read with Order XLI of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4543 of 2016 

Decided On: 13.04.2016

 Rishabh Chand Jain  Vs.  Ginesh Chandra Jain

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation: 2017(1) MHLJ 16 SC

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Whether partition of joint family property can be proved by entries in revenue record?

 The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2653 of 1972

Decided On: 21.02.1995

Digambar Adhar Patil Vs.  Devram Girdhar Patil (Died) and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and B.L. Hansaria, JJ.

Citation: AIR 1995 SC 1728

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Whether Criminal court can impound insufficiently stamped document?

 As discussed above, Section 33(2) proviso (a) and Section 35(d) of the Indian Stamp Act are made clear only for limited purpose of deciding the matters under Chapters IX and X of Cr.P.C. In other matters, the Court need not exercise discretion to impound the document and a Magistrate or a Judge of a criminal Court is not required to examine any instrument produced before him or come before him for the purpose of ascertaining whether or not instrument is properly stamped and not required to impound the same, if the same is found properly stamped, if such Magistrate or Judge of criminal Court does not think fit to do so. However, this exception is not applicable to Chapters IX and X of Cr.P.C., 1973. Thus exception created under proviso (a) is purely discretion of the Magistrate or Judge of a criminal Court. It is a settled law that whenever discretion is vested with the Court, it has to be exercised judiciously.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Crl. P. No. 10057 of 2016

Decided On: 19.01.2017

 Preetesh Kumar Vs.  State of Telangana and Ors.

Hon'ble Judges/Coram:

M. Satyanarayana Murthy, J.

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Whether Criminal court can appoint Advocate commissioner for recording of evidence?

As per Section 285(1) Cr.P.C no Advocate could be appointed as Commissioner for recording the evidence of witness.

11. Section 286 Cr.P.C is as follows:

286. Execution of commissions.

Upon receipt of the commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under this Code.

As per Section 286 Cr.P.C., either the Metropolitan Magistrate or Judicial Magistrate may be appointed as Commissioner for taking down the evidence of the witness.

IN THE HIGH COURT OF MADRAS

Criminal Revision Petition No. 1330 of 2006

Decided On: 01.09.2009

 Pankajam Ramaswamy Vs. M.R. Elangovan

Hon'ble Judges/Coram:

T. Sudanthiram, J.

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Whether court has jurisdiction to appoint Arbitrator in dispute relating to National Highways Act, 1956?

The moot question which arises before us is whether the

application under Section 11 of the Arbitration and Conciliation

Act, 1996(hereinafter being referred to as “Act 1996”) is

maintainable in view of Section 3G(5) of the National Highways

Act, 1956 (hereinafter being referred to as “Act 1956”) which

provides for appointment of an Arbitrator by the Central

Government.

 We are also of the considered opinion that in view of the

power being vested exclusively with the Central Government to

appoint an Arbitrator under Section 3G(5) of the Act 1956, being

a special enactment, the application filed under Section 11(6) of

the Act 1996 for appointment of an Arbitrator was not

maintainable and provisions of the Act, 1996 could not be

invoked for the purpose.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 6958-6959

OF 2009

NATIONAL HIGHWAYS AUTHORITY

OF INDIA Vs  SAYEDABAD TEA COMPANY LTD.

Rastogi, J.

Dated:AUGUST 27, 2019.

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Bom HC: Complainant in cheque dishonour case can not file appeal in session court

“Whether the appeal against acquittal in prosecution
for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881, would lie under
Section 378(4) of the Code of Criminal Procedure or
would be as per proviso below Section 372 of the
Code of Criminal Procedure ?”
Answer : The appeal against acquittal in prosecution for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881, would lie under Section 378(4) of the
Code of Criminal Procedure.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 201 OF 2018.

Kushal Kawaduji Singanjude Vs Ramnarayan Durgaprasad Agrawal (Kejadiwal),

CORAM : P.N. DESHMUKH &
PUSHPA V. GANEDIWALA JJ.

DATED : AUGUST 23, 2019.
(PER PUSHPA V. GANEDIWALA, J.)
Citation: 2020(1) MHLJ 748

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Whether dishonour of electronic fund transfer is punishable offence?

 Payment and Settlement Systems Act, 2007 

25. Dishonour of electronic funds transfer for insufficiency, etc., of funds in the account. –

1.     Where an electronic funds transfer initiated by a person from an account maintained by him cannot be executed on the ground that the amount of money standing to the credit of that account is insufficient to honour the transfer instruction or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the electronic funds transfer, or with both: Provided that nothing contained in this section shall apply unless-

a.     the electronic funds transfer was initiated for payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability;

b.    the electronic funds transfer was initiated in accordance with the relevant procedural guidelines issued by the system provider;

c.     the beneficiary makes a demand for the payment of the said amount of money by giving a notice in writing to the person initiating the electronic funds transfer within thirty days of the receipt of information by him from the bank concerned regarding the dishonour of the electronic funds transfer; and

d.    the person initiating the electronic funds transfer fails to make the payment of the said money to the beneficiary within fifteen days of the receipt of the said notice.

2.     It shall be presumed, unless the contrary is proved, that the electronic funds transfer was initiated for the discharge, in whole or in part, of any debt or other liability.

3.     It shall not be a defence in a prosecution for an offence under sub-section (1) that the person, who initiated the electronic funds transfer through an instruction, authorisation, order or agreement, did not have reason to believe at the time of such instruction, authorisation, order or agreement that the credit of his account is insufficient to effect the electronic funds transfer.

4.     The Court shall, in respect of every proceeding under this section, on production of a communication from the bank denoting the dishonour of electronic funds transfer, presume the fact of dishonour of such electronic funds transfer, unless and until such fact is disproved.

5.     The provisions of Chapter XVII of the Negotiable Instruments Act, 1881 shall apply to the dishonour of electronic funds transfer to the extent the circumstances admit.

Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability, as the case may be.

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Whether cross objection filed by one respondent against other respondent is maintainable?

The Apex Court observed in Panna Lal Vs. State of Bombay MANU/SC/0240/1963 : AIR 1963 SC 1516

(C) In our opinion, the view that has now been accepted by all the High Courts that O.41 R. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, that an objection under O.41 R. 22 can be directed against the other respondents, is correct.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Application No. 13940 of 2017, 

Decided On: 19.12.2018

Chhagan Trimbak Lokhande Vs. Dattatraya Krishna Patil and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 780

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Whether cross objection is maintainable if appeal is not maintainable?

Right of appeal is creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the appellant and power on the Court to do so. Section 39 of the Act confers right to file appeal, in so far as the orders passed under this Act are concerned, only against such of the orders as fall within one or other of the descriptions give in Clauses (i) to (vi) of Sub-section (1) of Section 39. The Parliament has taken care to specifically exclude any other appeal being filed, against any order passed under the Act but not covered by Clauses (i) to (vi) above said, by inserting the expression "and from no others" in the text of Sub-section (1). Clause (a) of Section 41 extends applicability of all the provisions contained in the Code of Civil Procedure, 1908 to (i) all proceedings before the Court under the Act, and (ii) to all the appeals, under the Act. However, the applicability of such of the provisions of the Code of Civil Procedure shall be excluded as may be inconsistent with the provisions of the Act and/or of rules made there under. A bare reading of these provisions show that in all the appeals filed under Section 39, the provisions of the Code of Civil Procedure, 1908 would be applicable. This would include the applicability of Order 41 including the right to take any cross objection under Rule 22 thereof to appeals under Section 39 of the Act.

15. Right to prefer cross objection pertakes of the right to prefer an appeal. When the impugned decree or order is partly in favour of one party and partly in favour of the other, one party may rest contended by his partial success with a jew to giving a quietus to the litigation. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the (sic) alive by pursuing the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross objection. Thus taking any cross objection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking cross objection. The substantive right is the right of appeal; the form of cross objection is a matter of procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1062 and 1063/2003

Decided On: 06.02.2003

 Municipal Corporation of Delhi Vs.  Intnl. Security & Intelligence Agency Ltd.

Hon'ble Judges/Coram:

R.C. Lahoti, Brijesh Kumar and Dr. Arijit Pasayat, JJ.

Citation: MANU/SC/0091/2003 : AIR 2003 SC 1515.

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