Whether statement of victim recorded U/S 161 of CRPC can be treated as dying declaration if victim dies subsequently?

As far as the implication of Section 162(2) Code of Criminal Procedure is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 Code of Criminal Procedure statement could be relied upon, as rightly contended by the learned Senior Counsel for the Respondent, once the said statement though recorded Under Section 161 Code of Criminal Procedure assumes the character of dying declaration falling within the four corners of Section 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded Under Section 161 Code of Criminal Procedure. The above statement of law would result in a position that a purported recorded statement Under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling Under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.

5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded Under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex. 44 and 48 had no evidentiary value, therefore, is erroneous. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1192 of 2018 

Decided On: 10.10.2018

 Pradeep Bisoi Vs. The State of Odisha

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2019) 11 SCC 500

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What are rights of legal heirs of deceased convicted accused of dishonour of cheque?

The legal heirs, in such a case, are neither liable to pay the fine or to undergo imprisonment. However, they have a right to challenge the conviction of their predecessor only for the purpose that he was not guilty of any offence. We have, therefore, allowed the application filed by the legal heirs to prosecute this appeal.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 664 of 2012

Decided On: 19.09.2019

M. Abbas Haji  Vs.  T.N. Channakeshava

Hon'ble Judges/Coram:
Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2019) 9 SCC 606

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Whether inaction on part of landlord to take objection against sub tenant amounts to his implied consent?

Learned counsel for the respondent has placed reliance upon a decision of this court Hiralal Kapur v. Prabhu Choudhury - MANU/SC/0189/1988 : [1988]2SCR1058 . The tenant in this case seems to have sub-let a part of his tenant to a Trust which started its activities from the premises of which landlord may also have been aware. The tenant had also started paying the rent by two cheques - one in his name and another cheque of Trust. The rent so tendered was duly accepted by the landlord. In some correspondence which took place between the tenant and the landlord, the Trust was not accepted as a sub-tenant. It was held by this Court that merely by the fact that the cheque of the Trust was being accepted as a part of the amount of rent and the fact that landlord may have the knowledge of the fact that the Trust was using part of the premises would not lead to any implied inference or consent of sub-lease in favour of the sub-tenant. For this conclusion no doubt the letters of the landlord had also been referred to by which sub-tenancy was not accepted by the landlord yet the fact remains that Court did not come to the conclusion that that before writing of those letters it was to be taken a case of sub-tenancy by conduct. The fact is that knowledge of possession or a part of the accommodation with the Trust and the acceptance of the part of the rent by cheque from the Trust were not considered conclusive of an inference of consent for sub-tenancy. Yet another case relied upon by the learned counsel for the respondent is Ram Saran v. Pyare Lal and Anr. - MANU/SC/0596/1996 : [1996]1SCR501 equivalent to In this case also the tenant surrendered his tenancy rights in favour of a registered Society without consent of the landlord. The landlord had also started accepting the rent tendered by the tenant in the name of the registered society. It was held that no inference of authorised sub-tenancy could be drawn nor inference of implied consent and it was held that the landlord was not estopped from seeking eviction on the ground of unauthorised sub-letting. The conduct of the landlord in accepting the rent from the society was held to be of no consequence. We have already observed earlier that the inference drawn from findings of fact is a legal question. It would not amount to interfering or substituting the finding of fact by the revisional court. Hence the decision in the case of Ubaiba (supra) relied upon by the learned counsel for the appellant would not be of any assistance to it.

14. In view of the discussion held above, we find no reason to interfere with the order passed by the High Court setting aside the orders of the appellate authority and upholding the orders of the trial court, refusing to draw any inference of implied consent on the basis of inaction or conduct of the landlord. The consent as envisaged under Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act 1965 would mean consent with some positive act which may lead to inference of conferring right on the tenant to sub-let the premises and mere inaction would not be sufficient to amount to implied consent on the part of the landlord.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3158 of 2002

Decided On: 29.04.2002

P. John Chandy and Company (P) Ltd. Vs.  John P. Thomas

Hon'ble Judges/Coram:

D.P. Mohapatra and Brijesh Kumar, JJ.

Citation: AIR 2002(SC) 2057

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Whether sub-tenancy is created if part of tenanted premises is given to new partner of partnership firm?

Now, applying this example to the present case, Atalram was never there when the tenancy was created. He came into the partnership firm only by way of his entry in the year 1971. In law, therefore, it was only Ishwardas himself who continued to be the tenant, though Atalram's entry into the partnership firm did not change the nature and did not mean parting of the possession on the part of Ishwardas. It also did not confer any status of tenancy of Atalram himself for the simple reason that this entry was not with the knowledge and/or consent of the landlady. Once this partnership was broken and two separate premises were created by Ishwardas and Atalram and a separate exclusive user was contemplated for Atalram of a part of the shop, it was clear that the original tenant Ishwardas had parted with the possession and had allowed the user of that separated part of the premises to Atalram. This would be nothing but an ex ample of clear sub-tenancy. Again, the original rent of the whole premises was Rs. 700/-. In the new arrangement, Ishwardas was to pay Rs. 400/- only, while Rs. 300/- were to be paid by Atalram. Thus, Ishwardas had reduced his liability to pay rent of Rs. 700/- per month. This was definitely, therefore, a consideration for sub-tenancy.

- Tenancy in the name of partnership--Exclusive enjoyment of the part of premises by new inducted partner--Amounts to sub-tenancy--Tenant liable to be evicted.

The firm to which the premises are let by the landlord holds the tenancy in favour of the then existing partner of the firm. If one of the partners retires and a new partner is brought in, such a new partner does not acquire tenancy rights and if he is given part of the premises exclusively and is to share the total rent, he is the sub-tenant and the landlord is entitled to the eviction of the tenant and the sub-tenant under Section 13(3)(iii) of the C.P. & Berar Rent Control Order.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 495 of 1990

Decided On: 08.10.1996

 Ishwardas and Brothers  Vs. Additional District Magistrate and Ors.

Hon'ble Judges/Coram:

V.S. Sirpurkar, J.

Citation: 1997(3) MHLJ 552

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Whether subletting can be inferred if portion of tenanted premises is in possession of Company?

It may be recalled that the decree for eviction against the appellant has been passed on the ground that though subletting of the premises for rent has not been proved, yet the appellant must be held to have parted with possession of a portion of the premises to the club and such parting with possession would attract Section 13(1)(e) of the Rajasthan Premises (Control) of Rent & Eviction Act, 1950 (for short the Act). On a reading of Sub-clause (e) of Section 13(1), it is seen that a tenant will render himself liable for eviction if he has "assigned, sublet or otherwise parted with the possession of, the whole or any part of the premises without the permission of landlord." Consequently even if a tenant parts with possession of the whole or any part of the premises without assigning or subletting the premises, he would still be liable to be evicted from the premises under the Act. If from this perspective, the user of the premises by the club is examined, it can certainly be held that the Appellant had parted with the possession of the premises as envisaged in Clause (e) of sub-section 1 of Section 13. This conclusion is warranted by several factors. Admittedly, when the club began to function in the leased premises, a name board carrying the name of the Club came to be exhibited in the premises. It is also admitted that the members of the club assemble at the premises everyday and play cards and other indoor games from evening till about midnight Though the appellant would say that the club members cannot have access to the premises unless he or in his absence his brother or son opens the premises, there is no evidence to show that the appellant had at any time exercised his right to exclusive possession and kept the premises locked and denied the members of the club entry to the premises. That apart there is a significant fact which has escaped the notice of the Appellate Court and the High Court viz that the club has its registered office at the leased premises. Section 146 of the Indian Companies Act enjoins every company to have a registered office to which all communications and notices may be addressed . Once a company has a registered office it is bound to comply with several provisions of the Companies Act, viz. (a) the register of members is to be kept there (Section 163) ; (b) the right of inspection has to take place there (Section 163) ; (c) the register of directors, etc,, is also to be kept there (Section 303) ; (d) the account books are to be maintained there unless the directors decide otherwise (Section 20); e) the register of mortgages and charges and copies of registered documents are also to be kept there (Section 143) ; and the right of inspection of them is to be exercised there (Section 144) ; (f) service of documents should be effected there. These requirements of the Act of the have to be complied with by the club by virtue of its registered office being situated in the leased premises. The appellant cannot prevent the club from performing its statutory duties so long as the club has its registered office in the premises. Hence this factor also warrants the view that the appellant had parted with possession of the major portion of the premises to the club. In such circumstances we see no merit in the contention of the appellant that the user of a portion of the premises by the club is only of a permissive nature and that there was no parting with possession of the premises to the club. The Appellate Court and the High Court were therefore, right in holding that the user of the premises by the club would amount to the appellant having parted with possession of a portion of the premises" as contemplated under Section 13(1) (e) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 855 of 1978 and C.M.P. No. 906 of 1979

Decided On: 29.03.1989

Roop Chand  Vs. Gopi Chand Thelia

Hon'ble Judges/Coram:

R.S. Pathak, C.J. and S. Natarajan, J.

Citation: AIR 1989 SC 183

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Whether court commissioner can be appointed to play CD and to evaluate contents and report to Court?

The CD is a piece of evidence produced by the petitioner to prove his contentions in his counter statement. The appointment of a Commission is intended to play the CD, evaluate the contents and report to the Court. According to Section (3) of the Indian Evidence Act, a fact is said to be proved when after considering the matters before the court, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the particular circumstances of the case, to act upon the supposition that it exists. In other words, the court must make an opinion as to 'proved or not proved', after considering the matters before it. In short, the power of appreciation is vested with the court alone, and it can never be relegated to an Advocate Commission and the court itself must evaluate the contents of a CD. That apart, Section 75 of the CPC, specifies the purposes for which the court can issue a Commission. The purposes include; (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act. The appreciation of evidence for reporting to the court is not specifically included in the said provision. We are of the opinion that no interpretation, at any stretch of imagination, can be made to include the act of appreciation of evidence for reporting to the court, within the purposes, for which a Commission can be issued, under the said provision.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 238 of 2019

Decided On: 26.08.2019

 Nishad  Vs.  Najma

Hon'ble Judges/Coram:

K. Harilal and Annie John, JJ.

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Whether licensor can obtain eviction of licensee by obtaining mandatory injunction without claiming possession?

 As it has been found by the Courts below that the Defendants are only licensees, the legal possession of the house is with the Plaintiff." Defendants have no independent  separate interest in the house. A licensees Defendants have no interest in the building and their possession cannot exclude the rightful possession of the Plaintiff as owners of the property. Merely because other modes of eviction are available to the Plaintiff his remedy by way of mandatory injunction cannot be denied to him. In Prahirondra Nath v. Narendra Nath MANU/WB/0038/1958 : AIR 1958 Cal 179 the Calcutta High Court held that the owner of an immovable property on termination of the licence is entitled to maintain a suit for mandatory injunction against the licensee to vacate the property. The above decision has been relied in Rajappan v. Veeraraghavan Iyer 1969 K.L.T. 811 and Krishna Moorthy Iyer, J. held that when the owner of immovable property terminates a licence he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. As the remedy of mandatory injunction is available to the Plaintiff as against the Defendants who are licensees the challenge against maintainability of the suit fails.

IN THE HIGH COURT OF KERALA

S.A. No. 695 of 1989

Decided On: 23.10.1989

 Ayissa Ummar Vs.  Ami

Hon'ble Judges/Coram:

M.M. Pareed Pillay, J.

Citation: 1990 (1) KLT 98

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Whether accused can take alternate plea in criminal trial?

The fact that a false case is set up by itself may
not deprive an accused of the right to establish the
fact that the case against him would still be embraced
within any of the exceptions under Section 300 IPC.
The law does not taboo adopting of the alternate pleas.
Ultimately, the question would fall to be decided, no
doubt, on the basis of appreciation of evidence and the
requirements of law flowing from the particular

provision of law. The accused may also be entitled to
the benefit of reasonable doubt.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.38 of 2020

PAUL Vs  STATE OF KERALA 

K.M. JOSEPH, J.
Dated:January 21, 2020.

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Whether it is necessary to prove that accused caused death of Rape victim with mensrea for applicability of S 376A of IPC?

The above cited principles have been minutely observed by us,

taking into consideration the peculiar facts and circumstances of the case

in hand. At the outset, we would highlight that the High Court while

confirming death has observed that the girl was found bleeding due to

forcible sexual intercourse — which fact, however, is not supported by

medical evidence. However, such erroneous finding has no impact on

conviction under Section 376A of the I.P.C. for a bare perusal of the section

shows that only the factum of death of the victim during the offence of rape is required, and such death need not be with any guilty intention or be a

natural consequence of the act of rape only. It is worded broadly enough to

include death by any act committed by the accused if done

contemporaneously with the crime of rape. Any other interpretation would

defeat the object of ensuring safety of women and would perpetuate the

earlier loophole of the rapists claiming lack of intention to cause death to

seek a reduced charge under Section 304 of I.P.C. as noted in the Report

of the Committee on Amendments to Criminal Law, headed by Justice

J.S. Verma, former Chief Justice of India:

“22. While we believe that enhanced penalties in a substantial

number of sexual assault cases can be adjudged on the basis of

the law laid down in the aforesaid cases, certain situations

warrant a specific treatment. We believe that where the offence

of sexual assault, particularly ‘gang rapes’, is accompanied by

such brutality and violence that it leads to death or a Persistent

Vegetative State (or ‘PVS’ in medical terminology), punishment

must be severe – with the minimum punishment being life

imprisonment. While we appreciate the argument that where

such offences result in death, the case may also be tried under

Section 302 of the IPC as a ‘rarest of the rare’ case, we must

acknowledge that many such cases may actually fall within the

ambit of Section 304 (Part II) since the ‘intention to kill’ may

often not be established. In the case of violence resulting in

Persistent Vegetative State is concerned, we are reminded of

the moving story of Aruna Shanbagh, the young nurse who was

brutally raped and lived the rest of her life (i.e. almost 36 years)

in a Persistent Vegetative State.

23. In our opinion, such situations must be treated differently

because the concerted effort to rape and to inflict violence may

disclose an intention deserving an enhanced punishment. We

have therefore recommended that a specific provision, namely,

Section 376 (3) should be inserted in the Indian Penal Code to

deal with the offence of “rape followed by death or resulting in a

Persistent Vegetative State”.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1523-1524 OF 2019

Ravishankar @ Baba Vishwakarma Vs The State of Madhya Pradesh 

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Whether tenant can file appeal against decree of possession passed against landlord?

An important aspect of the matter is that Defendant Nos. 1 and 2 only claimed to be the tenants in the property. They did not claim any ownership rights. It is true that according to them, it was Defendant No. 3 Mustaffa Shah Khan who was the mortgagee of the property but the trial court in the presence of the owner after contest decreed the suit in favour of the Plaintiff and against the Defendants. It specifically held that the Plaintiff had become the full owner of the whole property which stood redeemed and Defendant No. 3 Mustaffa Shah Khan had no share in the property. This finding should have been challenged by Defendant No. 3. This finding cannot be challenged by the tenants.

13. The tenants remain tenants whoever be the landlord/owner. Once Defendant No. 3 Mustaffa Shah Khan had not challenged the decree of the trial court with regard to his title, Defendant Nos. 1 and 2 cannot be allowed to challenge the finding of ownership with which they are not directly concerned. Therefore, the appeal filed by them before the District Judge on the issue as to whether the Plaintiffs had become the full owner of the property or not, was not maintainable. They could have challenged the decree on other grounds but not on this ground.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4610 of 2014

Decided On: 12.09.2019

Mohan Chandra Tamta  Vs.  Ali Ahmad (D) thr L.Rs and Ors.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2019) 9 SCC 471

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Whether it is mandatory that both parties should remain present before sub registrar at the time of registration of sale deed?

We find from the judgment of the Trial Court and the First

Appellate Court that the respective parties had led evidence of

execution and subsequent registration of the deeds but the first

two courts did not reject the contention of the second set of

defendants that there was no execution by Madegowda (since

deceased) of the deed of sale to Manchegowda (since deceased).

The case has been decided in favour of the plaintiff on the

ground that the buyer was not present at the time of

registration of sale deed. There is evidence to the effect that the

second defendant (Manchegowda) had not come to the office of

the SubRegistrar

at the time of execution of the sale deed. But

as per law as it stood at the material point of time, there was no

necessity of presence of purchaser at the Registration Office

during the registration of sale deed. The deed was executed by

Madegowda and that aspect has not been disputed. The deed in

question does not fall within Sections 31, 88 and 89 of the

Registration Act. Section 32 of the said Act does not require

presence of both parties to a deed of sale when the same is

presented for registration.

(NonReportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3975 OF 2010

H.P.Puttaswamy  Vs  Thimmamma 

ANIRUDDHA BOSE,J.

Dated:Dated: 24th January, 2020.

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Whether illiterate lady is entitled to get benefit of Pardanashin lady in absence of pleading?

The Plaintiff-first Respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the Plaintiff-first Respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that Defendant Nos. 1 and 3 are the sons of her uncle Mangta and Defendant No. 2 is the wife of Defendant No. 1 and they hatched a conspiracy to grab the land of the Plaintiff-first Respondent and with connivance, the power of attorney was prepared & registered on 25th April, 1995 in the registry office, in the name of the Plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above-mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the Plaintiff-first Respondent dated 27th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.

14. We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the Defendant-Appellant to prove that the alleged power of attorney was the result of fraud.

15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7137 of 2010

Decided On: 17.09.2019

 Ali Hussain  Vs.  Rabiya 

Hon'ble Judges/Coram:

N.V. Ramana, Mohan M. Shantanagoudar and Ajay Rastogi, JJ.

Citation: AIR 2019 SC 4313

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Whether court can alter or add charges against accused when case is closed for judgment?

In Jasvinder Saini v State (Govt of NCT of Delhi) (2013) 7 SCC 256, this Court dealt with

the question whether the Trial Court was justified in adding a charge under

Section 302 of the IPC against the accused persons who were charged under

Section 304B of the IPC. Justice T S Thakur (as he then was) speaking for the

Court, held thus:

“11. A plain reading of the above would show that the

court's power to alter or add any charge is unrestrained

provided such addition and/or alteration is made before

the judgment is pronounced. Sub-sections (2) to (5) of

Section 216 deal with the procedure to be followed once the

court decides to alter or add any charge. Section 217 of the

Code deals with the recall of witnesses when the charge is

altered or added by the court after commencement of the trial.

There can, in the light of the above, be no doubt about the

competence of the court to add or alter a charge at any time

before the judgment. The circumstances in which such

addition or alteration may be made are not, however,

stipulated in Section 216. It is all the same trite that the

question of any such addition or alternation would

generally arise either because the court finds the charge

already framed to be defective for any reason or because

such addition is considered necessary after the

commencement of the trial having regard to the evidence

that may come before the court.”

(Emphasis supplied)

20 From the above line of precedents, it is clear that Section 216 provides the

court an exclusive and wide-ranging power to change or alter any charge. The

use of the words “at any time before judgment is pronounced” in Sub-Section (1)

empowers the court to exercise its powers of altering or adding charges even

after the completion of evidence, arguments and reserving of the judgment. The

alteration or addition of a charge may be done if in the opinion of the court there

was an omission in the framing of charge or if upon prima facie examination of

the material brought on record, it leads the court to form a presumptive opinion as

to the existence of the factual ingredients constituting the alleged offence. The

test to be adopted by the court while deciding upon an addition or alteration of a

charge is that the material brought on record needs to have a direct link or nexus

with the ingredients of the alleged offence. Addition of a charge merely

commences the trial for the additional charges, whereupon, based on the

evidence, it is to be determined whether the accused may be convicted for the

additional charges. The court must exercise its powers under Section 216

judiciously and ensure that no prejudice is caused to the accused and that he is

allowed to have a fair trial. The only constraint on the court’s power is the

prejudice likely to be caused to the accused by the addition or alteration of

charges. Sub-Section (4) accordingly prescribes the approach to be adopted by

the courts where prejudice may be caused.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1934 of 2019

Dr Nallapareddy Sridhar Reddy Vs  The State of Andhra Pradesh 

Dr Dhananjaya Y Chandrachud, J

Dated:January 21, 2020.

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Whether a person will acquire right in suit property if he is added as party to suit as legal representative?

The Full Bench of the Punjab & Haryana High Court in a judgment

reported as Mohinder Kaur & Anr. v. Piara Singh & Ors.AIR 1981 P&H 130

examined the question as to whether a decision under Order XXII

Rule 5 of the Code would act as res judicata in a subsequent suit

between the same parties or persons claiming through them. The

Court held as under:

“5. So far as the first argument of Mr. Bindra, noticed

above is concerned, we find that in addition to the

judgments of the Lahore High Court and of this Court,

referred to in the earlier part of this judgment, he is

supported by a string of judgments of other High Courts

as well wherein it has repeatedly been held on varied

reasons, that, a decision under Order 22, Rule 5, Civil

Procedure Code, would not operate as res judicata in a

subsequent suit between the same parties or persons

claiming through them wherein the question of

succession or heirship to the deceased party in the

earlier proceedings is directly raised. Some of these

reasons are as follows:—

(i) Such a decision is not on an issue arising in the suit

itself, but is really a matter collateral to the suit and has

to be decided before the suit itself can be proceeded

with. The decision does not lead to the determination of

any issue in the suit.

(ii) The legal representative is appointed for orderly

conduct of the suit only. Such a decision could not take

away, for all times to come, the rights of a rightful heir

of the deceased in all matters.

(iii) The decision is the result of a summary enquiry

against which no appeal has been provided for.

(iv) The concepts of legal representative and heirship of

a deceased party are entirely different. In order to

constitute one as a legal representative, it is

unnecessary that he should have a beneficial interest in

the estate. The executors and administrators are legal

representatives though they may have no beneficial

interest. Trespasser into the property of the deceased

claiming title in himself independently of the deceased

will not be a legal representative. On the other hand the

heirs on whom beneficial interest devolved under the

law whether statute or other, governing the parties will

be legal representatives.

xx xx xx

9. We are, therefore, of the opinion that in essence a

decision under Order 22, Rule 5, Civil Procedure Code, is

only directed to answers an orderly conduct of the

proceedings with a view to avoid the delay in the final

decision of the suit till the persons claiming to be the

representatives of the deceased party get the question

of succession settled through a different suit and such a

decision does not put an end to the litigation in that

regard. It also does not determine any of the issues in

controversy in the suit. Besides this it is obvious that

such a proceeding is of a very summary nature against

the result of which no appeal is provided for. The grant

of an opportunity to lead some sort of evidence in

support of the claim of being a legal representative of

the deceased party would not in any manner change

the nature of the proceedings. In the instant case the

brevity of the order (reproduced above) with which the

report submitted by the trial Court after enquiry into the

matter was accepted, is a clear pointer to the fact that

the proceedings resorted to were treated to be of a very

summary nature. It is thus manifest that the Civil

Procedure Code proceeds upon the view of not

imparting any finality to the determination of the

question of succession or heirship of the deceased

party.”

11. The judgment in Mohinder Kaur was referred to and approved by

this Court in a judgment reported as Dashrath Rao Kate v. Brij

Mohan Srivastava (2010) 1 SCC 277.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5673 OF 2009

VARADARAJAN Vs  KANAKAVALLI

HEMANT GUPTA, J.

Dated:JANUARY 22, 2020.

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Whether court should issue notice in domestic violence proceeding if there are not specific allegations of domestic violence?

 When acts of domestic violence is alleged, before issuing
notice, the court has to be prima facie satisfied that there have been
instances of domestic violence.
9. In the present case, the respondent has made allegations of
domestic violence against fourteen appellants. Appellant No.14 is
the husband and appellants No.1 and 2 are the parents-in-law of
the respondent. All other appellants are relatives of parents-in-law
of the respondent. Appellants No.3, 5, 9, 11 and 12 are the
brothers of father-in-law of the respondent. Appellants No.4, 6 and
10 are the wives of appellants No.3, 5 and 9 respectively.

Appellants No.7 and 8 are the parents of appellant No.1. Appellants
No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10
are the residents of State of Rajasthan and appellants No.11 to 13
are the residents of State of Gujarat. Admittedly, the matrimonial
house of the respondent and appellant No.1 has been at Chennai.
Insofar as appellant No.14-husband of the respondent and
appellants No.1 and 2-Parents-in-law, there are averments of
alleging domestic violence alleging that they have taken away the
jewellery of the respondent gifted to her by her father during
marriage and the alleged acts of harassment to the respondent.
There are no specific allegations as to how other relatives of
appellant No.14 have caused the acts of domestic violence. It is
also not known as to how other relatives who are residents of
Gujarat and Rajasthan can be held responsible for award of
monetary relief to the respondent. The High Court was not right in
saying that there was prima facie case against the other appellants
No.3 to 13. Since there are no specific allegations against
appellants No.3 to 13, the criminal case of domestic violence
against them cannot be continued and is liable to be quashed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 141 OF 2020

SHYAMLAL DEVDA  Vs  PARIMALA 

R. BANUMATHI, J.
Dated:January 22, 2020.
Citation:(2020) 3 SCC 14

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Whether obstructionist notice is to be dismissed if obstructionist is not claiming under judgment debtor?

 In order to appreciate the contention of Mr. Kotwal, it is necessary to refer to the provisions of Order 21, Rule 97, 99 and 103 of the Civil P.C. Rule 97 provides that where the holder of a decree for possession of Immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall investigate into the matter. This right is conferred, either on the decree-holder himself or on an auction purchaser. It is not conferred on a purchaser by a private treaty. We merely wish to point out that the present plaintiff could not have maintained the application under the provisions of Order 21, Rule 97. It may none-the-less be that to the extent to which Watave was bound by such an order, private purchaser may also be bound by it, but for that purpose we shall consider the scope of the Order, Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. This rule makes it clear that in investigating the matter under Rule 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not under the judgment-debtor. If he was (not?) claiming under the judgment-debtor he may be claiming, either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court has in that event to dismiss the application under Rule 97. The Court is not concerned to see in what title the obstructionist was claiming. 

IN THE HIGH COURT OF BOMBAY

A.F.A.D. No. 1197 of 1962

Decided On: 03.04.1970

Ganesh Narayan Kulkarni Vs.  Ganesh Ramchandra Joshi and Ors.

Hon'ble Judges/Coram:

J.L. Nain and D.G. Gatne, JJ.

Citation : AIR 1971 Bom 16

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Whether cross examination should be restricted to what witness has stated in his examination in chief?

In Yeshpal's case (Supra) it has been observed that,

“While Courts will not ordinarily interfer with the proper exercise of the

right of cross-examination the Courts have the power and authority to

control the cross-examination of a witness”.

This Court is not agreeing with the submission by learned Advocate

for petitioners that, the Court cannot control the cross-examination

or he has free hand at the time of cross-examining the witness of

the prosecution; but then agree to the submission that the crossexamination

need not be restricted to what the witness has stated in

his examination-in-chief. A balance has to be struck here while

issuing directions to the learned Additional Sessions Judge that he

has to decide the relevancy of the question which he may get

explained from the learned advocate for the accused orally and then

allow him to put the said question to the witness. On any count

learned Additional Sessions Judge will not be justified in entirely

putting the shutter down while disallowing of the questions and

asking the defence advocate to restrict himself while crossexamining

P.W.18 to the post mortem examination report Exhibit

216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore,

again clarified that neither the learned advocate for the accused has

unfettered right to put any question to the witness in the crossexamination

but at the same time the learned Additional Sessions

Judge shall also not restrict him in putting questions in the cross to

the above referred documents only. There might be certain

questions which would be beyond those documents and as an expert

they are required to be elucidated from him. No straight jacket

formula can be laid down as to what should be permitted and what

should not be permitted as it depend upon the question that would

be put and the relevancy and admissibility of the same and / or of

the admissibility will have to be decided at that time. Definitely the

learned Additional Sessions Judge is guided by the procedure laid

down in Bipin Panchal’s case (Supra), and it is specifically laid down that,

it may be advantages for the Appellate Court in future. He has to

bear those advantages which have been laid down in para No.15 of

the case, in mind while recording the evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1764 OF 2019

 Sanjay Shankar Bhalkar, Vs The State of Maharashtra. 

CORAM : SMT.VIBHA KANKANWADI, J.

Dated  : 13-01-2020.

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What is duty of first appellate court while deciding first appeal?

The Hon'ble Apex Court in Santosh Hazari Vs. Purushottam Tiwari (Deceased) by L.Rs. [MANU/SC/0091/2001 : (2001) 3 SCC 179] has observed thus:-

".......... While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact (See Madhusudan Das v. Narayanibai [MANU/SC/0147/1982 : AIR 1983 SC 114]. The rule is--and it is nothing more than a rule of practice----than when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature abut the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his pinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [MANU/SC/0002/1950 : AIR 1951 SC 120]). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code......"

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 0794 of 2017

Decided On: 04.06.2019

Bhaurao Vs.  Ravsaheb and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020(1) MHLJ 348

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Whether court should dismiss suit for removal of encroachment relying on court commissioner report?

The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner's report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit. The Plaintiffs have been asserting encroachment by the Defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the Plaintiff not only with reference to the Commissioner's report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8285 of 2009

Decided On: 04.02.2019

 Ram Lal Vs. Salig Ram and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: 2020(1) MHLJ 170

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Whether court can entertain objection to execution of decree if it is necessary to investigate facts about jurisdiction of court?

A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

8. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or Under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 116 of 2019 

Decided On: 07.01.2019

Sneh Lata Goel Vs. Pushplata and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Hemant Gupta, JJ.

Citation: 2020(1) MHLJ 147

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Whether execution application can be dismissed on ground that Arbitration award is not registered?

 Dismissal of the execution proceedings seeking to execute an award passed by an Arbitrator on the ground that said award was unregistered is the subject matter of challenge in the present writ petition.

As per the provisions of Section 17(1)(b) of the said Act, it is clear that in any testamentary document purporting to create or declare any right, title or interest in any immovable property exceeding value of Rs. 100/- is compulsory registrable. The decisions relied upon by the learned counsel for the respondent nos. 1 and 2 support the aforesaid proposition. On reading of the entire award, it becomes clear that ownership rights in favour of the parties has been created with regard to some of the properties and they have been called upon to relinquish their rights with regard to other properties. It is therefore evident that since the right, title and interest was being created in immovable property exceeding the value of Rs. 100/-, the award was required to be duly registered. In absence of such registration, the award cannot be executed. Reference in this regard can be made to the decision in Sita Ram Bhama Vs. Ramvatar Bhama, MANU/SC/0284/2018 : (2018)15 Supreme Court Cases 130.

The decisions relied upon by the learned counsel for the petitioners do not lay down that even if any right, title and interest is created in immovable property exceeding the value of Rs. 100/-, registration of such documents is not necessary. The aspect of pre-existing rights is also not very relevant especially when both the parties are required to relinquish their rights in favour of the other party with regard to some properties.

7. It is thus found that the Executing Court was legally correct in coming to the conclusion that as the award that was sought to be executed was not registered, the execution proceedings were not tenable. I therefore do not find any reason to interfere with the said order. By observing that it is open for the petitioner to have the award registered and thereafter take such steps as are permissible in law to execute the award, 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 4571/2016

Decided On: 10.06.2019

Ramchandra Vs. Kiran and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2020(1) MHLJ 84 SC

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When court should reject application for amendment of pleading?

 Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the Code of Civil Procedure virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.

7. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1669 of 2019

Decided On: 14.02.2019

 M. Revanna Vs.  Anjanamma (Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and Mohan M. Shantanagoudar, JJ.

Citation: 2020(1) MHLJ 143

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Who is competent to decide issue of refund of security deposit by licensor to licensee either Arbitrator or small cause court?

 This court in case of RMC Readymix (I) P. Ltd. (supra) held that the suit for refund of security deposit is not covered by section 41 of the Presidency Small Cause Courts Act. It is held that the contention could be tenable if suit was for possession of the premises. This court specifically rejected the contention of the defendant that the deposit being related to premises on leave and licence basis and thus, it would be covered by section 41 of the Presidency Small Cause Courts Act.

31. This court in case of BNP Paribas Securities India Pvt. Ltd. (supra) while deciding an application under section 9 of the Arbitration Act held that the petition for refund of security deposit not refunded by the licensor would not fall under section 41 of the Presidency Small Cause Courts Act, 1882. It is held that since the reliefs of possession of the property and recovery of licence fee and damages already prayed by the licensor against the licencee in the Small Causes Court, the claim for refund of security deposit made by the licencee in the arbitral proceedings was maintainable.

37. In my view, even if such amount would have been demanded by the petitioners under clause (3) of the leave and licence agreement, the said dispute also could not have attracted section 41 of the Presidency Small Cause Courts Act, 1882. Such demand of licence fees at the enhanced rate which could be adjusted against the security deposit would not relate to the dispute falling under the expression "dispute relating to recovery of possession" attracting section 41 of the Presidency Small Cause Courts Act, 1882.

IN THE HIGH COURT OF BOMBAY

Commercial Arbitration Petition No. 452 of 2019 and Notice of Motion No. 911 of 2019

Decided On: 23.07.2019

A.S. Patel Trust Vs.  Wall Street Finance Limited

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2020(1) MHLJ 381

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