Whether tenant doing urgent repairs without issuing notice to landlord amounts to additions and alteration of permanent nature?

 Section 23 of the Act definitely imposes a duty on the landlord to keep the premises in a good condition. He is, therefore, under an obligation to make necessary repairs. But, in case of failure to keep the premises in good condition, there must be a notice or intimation by the tenant to point but the necessity of any such urgent repairs. If there is no such notice issued and the tenant on his own, unilaterally contract without written intimation and permission of the landlord, such unauthorised permanent construction, in that case, definitely falls within the clutches of the mandate of Section 13(1)(b) read with Section 23 of the Act. This breach, therefore, raises no doubt that the landlord, in such circumstances, is entitled to claim possession of the premises [Shadisingh (supra)]. As rightly painted out and as observed by the Courts below that the tenant had no right to get the premises altered or reconstructed in such fashion. There is no such provision available under the Bombay Rent Act which compels the landlord to reconstruct or rebuild in each and every circumstances, except to keep the premises in good tenantable repair. The tenant cannot unauthorisedly make permanent construct ion without written permission from the land lord.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3866 of 1991

Decided On: 08.08.2005

Najama Gulab Bagwan  Vs. Laxmibai

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation: 2006(1) MHLJ 273, 2006(3) BomCR 474

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Whether tenant is voluntarily liable to pay permitted increase?

 Section 11 of the Maharashtra Rent Control Act entitles landlord to increase rent by 4% per annum after its commencement. It is, therefore, apparent that said increase by 4% is not automatic, but at the discretion of landlord. If particular landlord does not want to increase rent by 4%, law does not compel him to increase it. In other words, tenant is not voluntarily required to pay 4% more. The respondent landlord has not pointed out that before issuing notice at Exh. 29, he had after 01/4/2000 increased rent by 4%.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1778 of 2005

Decided On: 07.11.2009

New Laxmi Cycle Company  Vs. Jagdishchandra

Hon'ble Judges/Coram:

B.P. Dharmadhikari, J.

Citation: 2009(6) MHLJ 906,2010 (1) ALLMR 189

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Whether tenant can avoid payment of standard rent even though said order is not stayed?

In the absence of any interim order passed by the High Court staying the operation of the order fixing the fair rent at Rs. 5,250/- per month, if the tenant is not depositing the fair rent; he must be doing so at his own risk.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6145 of 2009 

Decided On: 09.09.2009

 Arjunan Vs. Universal Fertilizer Corporation

Hon'ble Judges/Coram:

Tarun Chatterjee and R.M. Lodha, JJ.

Citation: (2009)9 SCC359

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Nagpur HC: Standard rent can be fixed from the date of application

Letting of Houses and Rent Control Order, 1949, clauses 4 and 5 - Order fixing fair rent--Date of operation.

On an application for fixation of fair rent, the Rent Controller cannot fix fair rent retrospectively from the date of the commencement of the tenancy but can only do it prospectively from the date on which he is moved.

IN THE HIGH COURT OF NAGPUR

Misc. Petn. No. 85 of 1952

Decided On: 29.08.1952

 Kewalchand Kastoorchand  Vs.  Samirmal Jaini and Anr.

Hon'ble Judges/Coram:

Hidayatullah and Sen, JJ.

Citation: AIR 1953 Nag 146,1953 NLJ 233

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Whether application for standard rent is to be dismissed if age of construction of suit building is not given?

 Although several grounds have been urged in support of the petition, Mr. Jaiswal, learned counsel for the petitioners, at the out set submitted that the application filed by respondents 1 to 4 for fixation of the fair rent was liable to be dismissed on the ground that in the application filed for fixation of fair rent the respondents 1 to 4 had not mentioned the age of construction of the suit premises which was of utmost importance. He further submitted that in the absence of such basic pleadings, the application for fixation of fair rent was liable to be dismissed. In support of this submission, Mr. Jaiswal placed reliance upon the judgment delivered by learned Single Judge of this Court in Shantilal Sohanlal Shah vs. Secretary, Krishi Utpanna Bazar Samit, Balapur : (1995(2) Mh. L. J. 12. Mr. Jaiswal submitted that since the ground goes to the root of the matter, the petitioners are entitled to raise this ground for the first time in the writ petition. He invited my attention to the ground (F) taken in this regard in the petition.

5] As stated above, no effective appearance has been put up on behalf of respondents 1 to 4.

6] I have considered the submissions advanced by learned counsel for the petitioners and perused the record and the judgment relied upon. In Shantilal Shah's case (supra) learned Single Judge of this Court dismissed the petition filed by the petitioner/landlord challenging the order passed by the authorities under Rent Control Order dismissing the application. Learned Single Judge has held that in an application for fixation of fair rent filed by the landlord he is bound to plead the age of construction of the house since in terms of Clauses 4, 5, 6 and 7 of the Rent Control Order the determination of fair rent depends upon the age of construction of the house. After considering the effect of Clauses 4, 5, 6 and 7 of the Rent Control Order, the learned Single Judge has held that in the absence of pleadings with regard to the age of construction of the house, the application for fixation of fair rent was liable to be dismissed. Perusal of the application filed by respondents 1 to 4 discloses that the age of construction of the suit house has not been mentioned.

Therefore, the ratio in Shantilal Shah's case(supra) is squarely applicable in the present case.

Bombay High Court

Shri Nandkumar Son Of B.H. Naidu vs Shri Thanwardas Son Of Hasanand ... on 8 September, 2008

Bench: A. P. Lavande

Citation: 2009(1) ALLMR 59

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Whether landlord can execute order of grant of interim rent even though defence of tenant is struck off?

 The impugned order was passed by the Court under Order 15-A of the Code of Civil Procedure directing the defendant to pay rent and deposit arrears. No fault can be found with such a direction. In this case, the defendant failed to obey the order and failed to deposit the arrears. The consequence of such failure is given in the same Rule 1 of Civil Procedure Code. The Rule says that if such order is not obeyed, the defence shall be struck out. The learned Counsel for the applicant/plaintiff contended that striking out of defence is a mode of enforcement while execution by attachment is mode of satisfaction. In 1999 (1) SCC 405, Smt. Kuldip Kaur v. Surinder Singh, it is observed as follows:

6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

6. Therefore, even though the remedy by way of striking out of defence is available, that does not deprive the plaintiff to resort to mode of satisfaction. Ordinarily, therefore, an order can be executed for satisfaction. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche

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Whether interim order can be executed after suit or appeal has come to an end?

Still, however, it has to be seen whether any interim order in any suit or appeal can be executed after the suit or appeal has come to an end. The law is well settled that when main lis comes to an end, all interim orders merge into that final order. Once, those interim orders merge into that final order, the interim order cannot be executed. To my mind, the interim orders do not survive once the main lis is decided by Court and no more remains executable. Here, the suit itself is dismissed hence none of the orders passed in the suit could be said to have" survived. This order, therefore, to my mind is not executable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: 2007(4) MHLJ 698,2007(3) ALLMR 544

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Whether exparte decree can be set aside if summons was pasted without obtaining signature of witnesses?

More so, it is also clear from the report of Process Server that on the date concerned petitioner was not at home and the notice was made 'chaspa' on the wall of house of the petitioner which do not carry any signature of the witnesses, thus, suffers from infirmity in the procedure as laid down in Order 9 Rule 7 CPC and also the precedent law laid down by this Court in Rameshwar Chaudhary (supra).

8. In light of aforesaid submission, the writ petition is allowed. The impugned order dated 02.11.2018 (Annex. 6) passed by learned ADJ No. 2, Nagaur in Case No. 4/2015 (Civil Case No. 6/2015) is quashed and set aside. The application of the petitioner filed under Order 9 Rule 7 CPC is allowed.

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 1977/2019

Decided On: 22.05.2019

 Gram Panchayat Bhakrod Vs.  Sriramratan Construction and Ors.

Hon'ble Judges/Coram:

Pushpendra Singh Bhati, J.

Citation: AIR 2019(NOC) 663 Raj

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Whether bank and firm holding debts and securities are necessary party in application for grant of succession certificate?

 After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that granting of succession certificate is a summary proceeding, the person holding debts and securities is not required to be impleaded. This is an established fact that SBI and the Company are mere custodians of the property of the petitioner's parents, and therefore, a law declaration of succession shall not be connected to them at all. At most after a lawful declaration of succession, the Bank and Company will have a legal obligation to hand over the assets to the valid successor. This proposition is also fortified by the judgment rendered by the Hon'ble Delhi High Court in the matter of Sushila Devi v. State & Ors. in CM(M) No. 985/2017, decided on 12.09.2017.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ Petition No. 4796 of 2019

Decided On: 16.04.2019

 Aruna Derashri  Vs. Learned District Judge, Bhilwara (Raj.)

Hon'ble Judges/Coram:

Dr. Pushpendra Singh Bhati, J.

Citation: AIR 2019 Raj 137

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Whether dismissal of application for condonation of delay in filing of review amounts to dismissal of review application?

 Having considered the submissions as to the maintainability of this Petition, we are of the view that an order of dismissal of the application for condonation of delay would be an order of dismissal passed in the Review Application. This has also been expressly held by the learned Single Judge of this Court in Chandrakant Govind Sutar (supra) at paragraphs 7 and 8 following the judgment of the Apex Court in Rani Choudhury (supra). An order of a Civil Court rejecting an application for review is not appealable as provided under Order XLVII Rule 7 of the Code of Civil Procedure, 1908 ("C.P.C.").

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2765 of 2018

Decided On: 03.05.2019

 MSTC Limited  Vs.  Standard Chartered Bank

Hon'ble Judges/Coram:

A.A. Sayed and Riyaz I. Chagla, JJ.

Citation: AIR 2019 Bom 211

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Whether court can direct removal of construction made during the period from dismissal of suit and allowing of appeal?

However, an examination of Order XXI Rule 32 C.P.C., reveals that Order XXI Rule 32(5) of C.P.C., is to the following effect.

32. Decree for specific performance for restitution of conjugal rights, or for an injunction

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

12. Therefore, there is a power to compel the defendants to act under Order XXI Rule 32(5) C.P.C., which is in addition to the other powers which are prescribed under Order XXI Rule 32(1)(2)(3) and (4).

15. If this case is examined against the back drop of this legal position, it is clear that the construction was made after the suit was dismissed. Throughout the period of the litigation, the decree holder had access to the site and there was no gate. The judgment debtors cannot take advantage of the dismissal of the suit and now say that the judgments passed by the Appellate Court as confirmed by the Second Appellate Court cannot be executed. of all the judgments cited by the revision petitioner, this Court is of the opinion that B. Gangadhar's case (supra), has the closest applicability. The following passage from Para 5 is relevant although the facts are a little different:

".........If any obstruction is raised by putting up a construction pendente lite or prevents the passage or right to access to the property pendente lite, the plaintiff has been given right and the decree-holder is empowered to have it removed in execution without tortuous remedy of separate suit seeking mandatory injunction or for possession so as to avoid delay in execution or frustration and thereby defeat the decree. The Executing Court, therefore, would be justified to order its removal of unlawful or illegal construction made pendente lite so that the decree for possession or eviction, as the case may be, effectually and completely executed and the delivery of possession is given to the decree holder expeditiously. Admittedly, pending suit the petitioner had constructed shops and inducted tenants in possession without permission of the Court. The only course would be to decide the dispute in the execution proceedings and not by a separate suit."

16. In view of the cases referred to earlier this Court is of the opinion that this is a fit case whether the inherent power of the Court must be used and should be used to undo the wrong that was committed namely, the construction of the wall in the plot 'LP and the removal of the gate.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CRP No. 4388 of 2012

Decided On: 10.04.2019

Valluru Samba Siva Rao Vs. Krishna Apartments Association and Ors.

Hon'ble Judges/Coram:

D.V.S.S. Somayajulu, J.

Citation: AIR 2019 AP 43

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Supreme Court: Government is not entitled to get unconditional stay to execution of arbitration award

 It may be true that the Code of Civil Procedure provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of Code of Civil Procedure provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no ex-parte injunction order can be passed against the Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of ex-parte interim orders against the Government.

26. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay Under Section 36 filed by the Government in proceedings Under Section 34 of the Arbitration Act.

27. Although we are of the firm view that the archaic Rule 8A of Order XXVII Code of Civil Procedure has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of Code of Civil Procedure are to be applied, the same would only exempt the Government from furnishing security, whereas Under Order XLI Rule 5 of Code of Civil Procedure, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof.

28. For the foregoing reasons, we are of the opinion that the impugned order passed by the Calcutta High Court granting unconditional stay of the arbitration award dated 21.01.2010, cannot be sustained in the eye of law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5432 of 2019 

Decided On: 12.07.2019

 Pam Developments Private Ltd. Vs. State of West Bengal

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Vineet Saran, JJ.

Citation: AIR 2019 SC 3937,(2019) 8 SCC 112

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Supreme Court:It is mandatory for employer to communicate Annual confidential report within reasonable time

8. In our opinion, the view taken in Dev Dutt [Dev Dutt v. Union of India, MANU/SC/7666/2008 : (2008) 8 SCC 725: (2008) 2 SCC (L&S) 771] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR--poor, fair, average, good or very good-- must be communicated to him/her within a reasonable period.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5340-5341 of 2019 

Decided On: 10.07.2019

 Pankaj Prakash  Vs.  United India Insurance Co. Ltd. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Indira Banerjee, JJ.

Citation: AIR 2019 SC 3879

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Madhya Pradesh HC: Personal problems of public servant should be considered while passing transfer orders

This Court is conscious of the fact that assailing an order of transfer on the ground of the son/daughter of transferred employee being in Class-11th and 12th is not a justiciable cause. However, our Constitution contemplates the State at the center or at provincial level, to be directed towards welfare of the people at large, which is only possible when the people are contented by the treatment they received from the State. Services, are an integral part of the system and are instrumental in making the administrative machinery of the State move. The directive principles of State Policy oblige the State to make available circumstances and atmosphere for the citizens to physically, mentally, socially and economically grow to their fullest potential and in-turn contribute towards the over all development of the nation. This concept is reflected from a bare reading of Article 38(1) of the Constitution of India which is one of the directive principles of State Policy, which is reproduced below for ready reference and convenience:—

“Art.38(1). The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

4. For a public servant to strive towards excellence, it is of utmost importance that fair and equitable opportunities are made available by the State. One of the means to achieve this goal of providing equitable opportunities by the State is to make available healthy and stress-free working environment for a public servant. A stress-free working environment is inter alia possible when the State, functioning as an employer, while effecting transfers takes into account not only the administrative exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which is though difficult but not impossible to achieve. Every government in it's capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the over all development of the particular institution and as well as the nation.

In the High Court of Madhya Pradesh(Gwalior Bench)

(Before Sheel Nagu and Vivek Agarwal, JJ.)

Ripudaman Singh Yadav  v. State of M.P. and Others

W.A. No. 1141/2019

Decided on July 16, 2019

Citation: 2019 SCC OnLine MP 1658

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Delhi HC: A person terminated from private employment can file suit for declaration that termination was illegal

A meaningful reading of the Plaint shows that the respondent

has not sought any re-instatement in service but had claimed that the

termination is illegal and hence null and void.

13. Learned counsel for the respondent before the trial court

categorically stated that the respondent did not seek any reinstatement.

14. Even if prayer (a), as framed, could not be granted, respondent

could claim damages etc. for wrongful termination in case respondent

is able to establish that the termination is illegal or contrary to any

settled principles and that is what the respondent has sought in prayers

(b) to (d).

15. In case the contentions of learned counsel for the petitioner

were to be accepted, then respondent/plaintiff would be left

remediless. On the one hand, as an employee, she cannot claim the

relief of reinstatement and on the other hand the employee she is

stated to be barred from claiming any damages. That can never be the

intention of the law.

16. It is also a settled position that under order 7 Rule 11 CPC, a

plaint cannot be dissected and rejected in part. The plaint has to be

rejected as a whole or not at all.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 27.09.2019

C.R.P. 215/2019

INTERTEK INDIA PVT LTD Vs PRIYANKA MOHAN 

CORAM:-

 MR JUSTICE SANJEEV SACHDEVA

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Bombay HC: Accused can not be convicted under Essential commodities Act if he is not valid license holder

The accused – appellant was not a license holder. Since the

appellant is not a holder of valid licence under section 3 of the Essential

Commodities Act, there could not be any conviction recorded under

section 7 of the Essential Commodities Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 782 OF 1997

Shri Jayendra Sadarmal Talereja  Vs. The State of Maharashtra

CORAM: SMT. SADHANA S. JADHAV, J.

DATE : 16th OCTOBER 2019.

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Whether accused can be convicted for offence under SC &ST Atrocities Act if he has not given abuses referring to caste or tribe of complainant?

Going by the version of the complainant Deshiram himself, the expressions used by the Appellant during the course of vertical altercation, did not refer to the caste or tribe that the complainant belonged though such assertion finds place in the testimony of the other witnesses.

8. Thus, the fact that the Appellant abused the complainant Deshiram is quite clear and as such his conviction and sentence recorded Under Section 294 Indian Penal Code was fully justified. However, going by the version of the complainant Deshiram according to which there was no reference to the caste or tribe of the complainant, there is a doubt as regards charge Under Section 3(1)(x) of the Act.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 883 of 2019

Decided On: 10.05.2019

Narad Patel  Vs.  State of Chhattisgarh

Hon'ble Judges/Coram:

Arun Mishra and U.U. Lalit, JJ.

Citation:(2019) 6 SCC 268

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When revisional court should not remand case to executing court for deciding objections on merit?

 The reasons to remand the case to the Revisionary Court are more than one as mentioned hereinbelow.

16. In our opinion, the Revisionary Court committed two errors. In the first place, it should not have remanded the case to the Executing Court for its fresh consideration on merits but it should have decided the revision on merits in accordance with law.

17. It is for the reason that the Executing Court had already decided all objections raised by the Defendants (Appellants) on merits and had found no merit therein. The Revisionary Court was, therefore, under legal obligation to decide the legality and correctness of the findings recorded by the Executing Court on its merits in its revisionary jurisdiction instead of remanding the case to the Executing Court. Indeed, we do not find any justifiable reason, which could justify remand having regard to the nature of the objections raised by the Defendants (Appellants) before the Executing Court. In other words, this was not the case, which needed remand to the Executing Court for its fresh decision on merits.

18. In our opinion, the remand of a case to the Subordinate Court is considered necessary when the Superior Court while exercising its appellate or revisionary jurisdiction finds that the Subordinate Court has failed to decide some material issues arising in the case or there is some procedural lacuna noticed in the trial, which has adversely affected the rights of the parties while prosecuting the suit/proceedings or when some additional evidence is considered necessary to decide the rights of the parties which was not before the Trial Court etc. (See Order 41 Rules 23, 23-A, 24 and 25 of the Code of Civil Procedure, 1908). Such was not the case here.

19. Second error committed by the Revisionary Court was that it allowed the Defendants (revision Petitioners) to file additional documents (Ex. 22) to prove their case.

20. In our opinion, the documents sought to be filed by the Defendants (revision Petitioners) were neither relevant and nor material for deciding the legality and correctness of the order passed by the Executing Court. The legality and correctness of the order impugned in the revision could be decided one way or the other without the aid of any additional document but on the basis of material already on record keeping in view the law laid down by this Court in several decided cases on the issue in question. Indeed, if the Executing Court could decide the issue finally at its level, the Revisionary Court too could do the same at its level.

21. In our view, the issue in question was not required to be decided Under Order 21 Rule 97 of the Code of Civil Procedure but it should have been so decided keeping in view the law laid down by this Court in the case of Roshanlal v. Madan Lal (MANU/SC/0513/1975 : AIR 1975 SC 2130) which lays down the principle as to how the issue of such a nature needs to be dealt with by the Executing Court when it is raised by the judgment debtor in execution proceedings.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 9996-9997 of 2018 

Decided On: 26.09.2018

Hiya Associates  Vs.  Nakshatra Properties Pvt. Ltd.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Mohan M. Shantanagoudar, JJ.

Citation: (2018) 18 SCC 358

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How to appreciate evidence if there is allegation that tenant is causing Nuisance to adjoining occupiers?

15. As regards the case of nuisance, Section 16 (i) (c), inter alia, declares that conduct which is a nuisance or annoyance to the adjoining or neighbouring occupier by the tenants or others under him, is the ground for eviction. The nuisance, apparently, is attributed to the period of time when business of fast food was being carried out. We have noticed the findings of the Trial court. The evidence of none of the neighbours, be they any of the shopkeepers in the building itself or otherwise, is forthcoming. Details, as such, thereof are not seen established. The original Plaintiff who resided in the same building has not given evidence. The evidence essentially constitutes of the deposition of PW1, the son of the original Plaintiff and the complaint in writing. Admittedly, he does not reside in the building. He resides elsewhere. No doubt, his evidence that when he came to visit his mother and he would go around, is relied upon to conclude that he has experienced nuisance and that nuisance is established. We would think that having regard to the serious consequences which arise out of ground of nuisance, being established, the facts of this case may not justify eviction of Appellants on the said ground. In fact, the High Court has not independently gone into the matter and it has affirmed the findings of the Appellate Forum. These findings, we have adverted to. We do not think that there was justification for the Appellate court or the High Court to sustain eviction on the ground of nuisance.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4268 of 2019

Decided On: 08.05.2019

Nilesh Laxmichand  Vs.  Shantaben Purushottam Kakad (Since Deceased) by L.Rs.

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Supreme Court: Governing principle for determining amount of fine to be imposed

 Insofar as the nature and extent the power to impose fine is concerned, Section 63 of the Indian Penal Code provides some guidelines and states that wherever no sum is expressed to which a fine could extend, the amount should not be excessive. It follows that if the law in question or the concerned provision stipulates the quantum or minimum amount of fine, the Courts must be guided by such specification. In Shantilal (supra) this Court considered the nature of imposition of fine and what attending circumstances ought to be taken into account by the Court while directing imprisonment for nonpayment of fine. Para 31 of the said decision is as under;

31. The next submission of the learned Counsel for the Appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1209 of 2018 

Decided On: 20.09.2018

 Sharad Hiru Kolambe Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and U.U. Lalit, JJ.

Citation:AIR 2018 SC 4595,(2018)18 SCC 718.

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Whether it is mandatory to report about occurrence of offence under POCSO Act after investigating facts?

The entire case set up against the Appellants is on the basis that when the victim was brought to the hospital her age was recorded as 18 years. On that basis Appellants could have gathered that at the time of conception she was less than 18 years and was, thus, a minor and, therefore, the Appellants should have taken due care in finding as to how the victim became pregnant. Fastening the criminal liability on the basis of the aforesaid allegation is too far-fetched. The provisions of Section 19(1), reproduced above, put a legal obligation on a person to inform the relevant authorities, inter alia, when he/she has knowledge that an offence under the Act had been committed. The expression used is "knowledge" which means that some information received by such a person gives him/her knowledge about the commission of the crime. There is no obligation on this person to investigate and gather knowledge. If at all, the Appellants were not careful enough to find the cause of pregnancy as the victim was only 18 years of age at the time of delivery. But that would not be translated into criminality.

10. The term "knowledge" has been interpreted by this Court in A.S. Krishnan and Ors. v. State of Kerala MANU/SC/0233/2004 : (2004) 11 SCC 576 to mean an awareness on the part of the person concerned indicating his state of mind. Further, a person can be supposed to know only where there is a direct appeal to his senses. We have gone through the medical records of the victim which were referred by Mr. Basant R., Senior Advocate for the Appellants. The medical records, which are relied upon by the prosecution, only show that the victim was admitted in the hospital at 9.15 am and she immediately went into labour and at 9.25 am she gave birth to a baby. Therefore, Appellant No. 1 attended to the victim for the first time between 9.15 am and 9.25 am on 7th February, 2017. The medical records of the victim state that she was 18 years' old as on 7th February, 2017. Appellant No. 1 did not know that the victim was a minor when she had sexual intercourse.

11. Appellant No. 2 had not even examined the victim and was not in contact with the victim. As per the medical records relied upon by the prosecution, the baby was attended to by Appellant No. 2 at 5.30 pm on 7th February, 2017. He advised that the baby be given to the mother. Therefore, Appellant No. 2 had no occasion to examine/treat the victim.

12. Appellant No. 3 had not come in contact with the victim or the baby at all. Being the administrator of the hospital it was not possible for her to be aware of the details of each patient. Considering that the victim was brought to the said hospital for the first time on 7th February, 2017, it would not be possible for Appellant No. 3 to be aware of the circumstances surrounding the admission of the victim.

13. The knowledge requirement foisted on the Appellants cannot be that they ought to have deduced from circumstances that an offence has been committed.

14. Accordingly, we are of the view that there is no evidence to implicate the Appellants. Evidence should be such which should at least indicate grave suspicion. Mere likelihood of suspicion cannot be the reason to charge a person for an offence. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 961 of 2018 

Decided On: 01.08.2018

 Tessy Jose  Vs.  State of Kerala

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 18 SCC 292

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Whether unregistered family settlement will operate as estoppel?

However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Ors. v. K. Shanmugam Pillai and Ors. MANU/SC/0398/1972 : (1973) 2 SCC 312 in which it was observed as under:

13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical Rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

9.5 As held by this Court in the case of Subraya M.N. (Supra) even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 784 of 2010

Decided On: 01.05.2019

 Thulasidhara  Vs. Narayanappa and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: (2019)6SCC 409

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Supreme Court: It is mandatory to hear second wife in appeal filed by first wife if husband has performed second marriage after divorce decree

 The Appellant herein is the second wife of Respondent No. 1 (husband). It is the case of the Appellant that after passing of the ex parte decree for dissolution of marriage of Respondent No. 1 with Respondent No. 2 and expiry of period of limitation for filing appeal, Respondent No. 1(husband) entered into matrimony with her (appellant). On the other hand, Respondent No. 2 (first wife of Respondent No. 1) filed the aforesaid appeal of which the Appellant had no knowledge, but the fact of Respondent No. 1 having married the Appellant was indeed stated before the High Court. However, when Respondent No. 1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree passed on 23.08.2003 in C.S. No. 09-A of 2002 and directed that, the parties shall live together as husband and wife. The Appellant herein (second wife of Respondent No. 1), on coming to know of the aforesaid order dated 09.08.2011 passed by the Single Judge of the High Court in M.A. No. 709/2005, filed review petition (R.P. No. 48 of 2014) before the High Court. The Division Bench of the High Court, by order dated 17.10.2014, dismissed the said review petition. Challenging both the orders, the Appellant has filed the present appeals by way of special leave in this Court.

10. The need to remand the case has occasioned because we find that the Appellant was not made a party to the appeal and nor she was heard by the High Court.

11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the Appellant with Respondent No. 1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.

12. In such a situation, where the impugned order was passed without hearing the Appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4847-4848 of 2019 

Decided On: 09.05.2019

 Karuna Kansal Vs. Hemant Kansal and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: (2019) 6 SCC 581

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When court should dismiss whole appeal as abated if there is death of one of appellant?

We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the Defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the Appellant.

19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the Appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second Defendant. This is not a case where their claims were distinct claims. 

21. The decree, which the Appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the Defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed.

22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the Appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the Appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the Appellant invites the appellate court to pass. In such circumstances, the mere fact that the Appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent decree which emerges as a result of the failure to substitute legal representative of the late brother and the abating of the appeal filed by his late brother. Consequently, we see no merit in the appeal. It is accordingly dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4103 of 2008

Decided On: 07.05.2019

Hemareddi  Vs.  Ramachandra Yallappa Hosmani and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: (2019) 6 SCC 756

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Whether court should grant reasonable mesne profits even if applicant has failed to lead evidence in that respect?

11. It is correct that the Appellant had not led any evidence on the issue of mesne profits though such an issue was specifically framed. However, in the interest of justice, the Appellant could have been granted some reasonable compensation for the wrongful possession of the premises from the Respondent herein.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5855 of 2018 

Decided On: 23.02.2018

Bhag Singh Vs. Vikram Sandhu

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation:(2018) 18 SCC 374

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Whether there is presumption of existence of HUF after commencement of Hindu Succession Act 1956?

Also, as Order 6 Rule 4 CPC is attracted to suits where plaintiff claims that a coparcenary or Hindu Joint Family exists, (inasmuch as after coming into force of the Act, 1956, there is no presumption as to the existence of an HUF), detailed facts have to be averred. However, no averments have been made by factual references qua each property claimed to be a Hindu Joint Family property.

IN THE HIGH COURT OF DELHI

CS (OS) 2223/2013, 

Decided On: 04.02.2019

Aarshiya Gulati  Vs.  Kuldeep Singh Gulati and Ors.

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Whether lessee can seek protection of Maharashtra rent control Act if construction was to be removed after expiry of lease period?

 On the date of expiry of the lease period, i.e. on 31st December, 2003, the Rent Control Legislations were not in force as the same was repealed by provisions of Section 58(1)(b) of Maharashtra Rent Control Act, 1999 with effect from 31st March, 2000. In the given set of facts, the learned Judge has held thus;

"It is not in dispute that the leases in respect of open land are not governed by the provisions of the Maharashtra Rent Control Act Hence, the only remedy available was to file a suit invoking the ordinary jurisdiction of a Civil Court for eviction of tenant and for possession under the general law of the Transfer of Property Act, and neither the provisions of the Rent Control Legislations, nor the provisions of the Maharashtra Rent Control Act were applicable, as the lease in question was for the open land."

19. Thus, taking into consideration facts of the case and the law laid down by the Apex Court as well as by this Court in aforesaid two cases and for the reasons stated here-in-above, suit property was not "Premises" within the meaning of Section 7(9) of the Maharashtra Rent Control Act, 1999 and, therefore, suit for eviction filed under the general law of the Transfer of Property Act, 1882 was maintainable and as such, provisions of the Maharashtra Rent Control Act were not applicable as the lease in question was for open plot. Questions are answered accordingly.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 638 of 2014

Decided On: 03.05.2019

Narendra Harilal Jethwa Vs. Bholadasji Mandir and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: AIR 2019(NOC) 648 Bom

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How to appreciate evidence in case of fixation of rent by court?

On perusal of record, I find that on issue no. 2 regarding rate of rent the court below has considered the rent receipts filed by the plaintiff for the months of March, April and May 2009 wherein the name of the tenant is shown as Bobby and the name of the landlord is shown as Dayal Singh and Dayal Singh has received the rent and the rate of rent shown is shown Rs. 5,000/-. These receipts were proved by PW-1. The defendant except filing his affidavit did not produce any evidence whatsoever to contradict these receipts. He filed his statement in the shape of affidavit and he never came forward for cross-examination despite of having been several opportunities. I also find that that except the bald denial, there was nothing on record to prove otherwise. In view of the specific case of the plaintiff that the other adjoining shop of same size that have been let out at the rate of Rs. 8,000/- per month and also considering the size of the shop (18 feet x40 feet), which is a new construction as per the first assessment of the year 2008, I find that there is no perversity in the finding recorded by the court below in this regard so as to attract exercise of revisional powers in the findings of fact.

15. During the course of argument much stress was given on the ground that the rate of rent has wrongly been fixed by the trial court. The assertion is that the rent was payable at the rate of Rs. 500/- per month and not at the rate of Rs. 5,000/- per month. This issue has been decided in favour of the plaintiff on the basis of the rent receipts produced by the plaintiff. The defendant never came forward to lead his evidence in rebuttal and in fact, he never came forward to argue the case. A perusal of the order dated 07.07.2018 at page 155 of the paper book clearly indicates that at least 8 dates were fixed for evidence of the defendant and his applications to recall the orders, whereby his opportunity to lead evidence were closed, were allowed on payment of cost on several occasions, but still he did not come forward to lead any evidence. He even after seeking time for argument did not come forward to argue the case and therefore, it cannot be said that the defendant was not afforded proper opportunity of hearing by the court below to rebut the evidence of the plaintiff on the issue of rent deed of land.

IN THE HIGH COURT OF ALLAHABAD

S.C.C. Revision No. 97 of 2018

Decided On: 04.12.2018

Bobby Vs.  Raj Kumari

Hon'ble Judges/Coram:

V.K. Birla, J.

Citation: AIR 2019(NOC) 647 ALL

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When eviction suit filed by landlord against tenant on ground of subletting will be barred by limitation?

After hearing both the learned Counsel, and after perusal of the Trial Court judgment and the lower Appellate Court judgment, it is clear that in the instant case, though the tenancy was created in favour of Respondent No. 1, the Respondent No. 1 never stayed in the suit premises, right from inception, i.e. 1st February, 1969. On the contrary, the Respondent No. 1 had illegally sub-let the same to Respondent Nos. 2 and 3 from 1st February, 1969. If that be so, the breach of tenancy conditions occurred on 1st February, 1969, and the suit ought to have been filed within 12 years, as per Article 66 of the Limitation Act. Ex-facie the suit is barred by law of limitation. I respectfully do not agree with the judgment of the Gujarat High Court, that in case of illegal subletting, there would be a continuing cause of action. The said view is contrary to the provisions of Article 66 of the Limitation Act. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 684 of 1991

Decided On: 05.12.2006

Taherbhai Taiyebhai Poonawala Vs. G. Hamid Hasan Patel and Ors.

Hon'ble Judges:

Dr. S. Radhakrishnan, J.

Citation: AIR 2007 Bom 80

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Whether court can direct eviction of tenant on basis of statement made by Advocate of tenant?

 It has been held by the Apex Court in Babu Ram Gupta (supra) that even if there was an undertaking given by the counsel on behalf of his client, the undertaking should be carefully construed to find out the extent and nature of the undertaking actually given by the person concerned. It is not open to the Court to assume an implied undertaking when there is none on the record. In the instant case, the Senior Counsel for the bank had not given any undertaking before the Court that the premises shall be vacated within four months or within any specific time.

27. The matter can be looked from another angle also. Jurisdiction cannot be conferred by consent. Statutory provisions cannot be violated by consent. Conferment of jurisdiction is a legislative function. Jurisdiction can neither be conferred with the consent of the parties nor by a superior court. The Court cannot derive jurisdiction apart from the statute. In such eventuality the doctrine of waiver also does not apply (See Jagmittar Sain Bhagat v. Health Services, Haryana : MANU/SC/0703/2013 : AIR 2013 SC 3060). A wrong concession, on a question of law, made by counsel is not binding on his client (See Uptron India Limited v. Shammi Bhan: MANU/SC/0258/1998 : AIR 1998 SC 1681). Neither the client nor the Court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed (See Himalayan Co-operative Group Housing Society v. Balwan Singh : MANU/SC/0609/2015 : AIR 2015 SC 2867). Therefore, immunity from eviction enjoyed by the bank under the provisions of the Act is not lost on account of the statement made by the counsel for the bank in the Court that the premises would be surrendered immediately on construction of currency chest in another building.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

W.A. No. 2598 of 2017

Decided On: 02.07.2019

 Central Bank of India  Vs.  Beena Thiruvenkitam

Hon'ble Judges/Coram:

C.K. Abdul Rehim and R. Narayana Pisharadi, JJ.

Citation: AIR 2019 Kerala 216

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