Sunday, 25 October 2020

Questions and answers in law part 12

Q.1 What is limitation for filing suit for eviction against tenant on ground of subletting?
Ans:- 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. 
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 684 of 1991

Decided On: 05.12.2006

 Shri Taherbhai Taiyebhai Poonawala, Vs.  Shri G. Hamid Hasan Patel 
Hon'ble Judges: 
Dr. S. Radhakrishnan, J.

Citation: AIR 2007 Bom 80.
Read full judgment here: Click here

Q 2 Whether revision filed before appellate court of small cause court can be dismissed in default if party fails to appear before court?

Ans:- However, the Learned Counsel for the Respondents urged that, although there is a rule about restoration to file of a revision petition dismissed in default, there is no similar rule for setting aside an ex-parte order passed in a civil revision. Therefore, the contention is that this Court has no jurisdiction to set aside an ex parte order. In my opinion, a resort to exercise of inherent powers would be necessary to meet such a situation; otherwise we are led to the anomalous situation created by the view as expressed by Byers J. in A. Rirnxmwrti Iyer and Ors. v. T.A. Meenakshisundarammil and Anr. (Supra), as this Court would have the power to do damage to a party, but would be supposed not to undo it. 

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Misc. Civil Case No. 94 of 1963

Decided On: 12.12.1963

 Dhullchand Bhuraji  Vs.   Chainsingh Bachusingh and Ors.

Hon'ble Judges/Coram:
P.K. Tare, J.

Citation: 1965 JLJ 997,= ILR (1966) MP 169=1966 MP LJ 65, MANU/MP/0146/1963
Read full judgment here: Click here

Q 3:- 
Whether court can issue heirship certificate after so many years of passing of order of grant of heirship certificate?

Ans:- Usually, a heirship certificate is issued in the name of the applicant by recognizing him as an heir of the deceased in respect of management of some immovable property. Thereafter, the applicant is required to furnish the requisite court -fees stamp as per valuation on which the certificate is typed. Unless, it is supplied there is no question of "issuance'' of heirship certificate though the application is allowed. So if an applicant appears after 5 years ,he/she will have to explain the delay satisfactorily and may be required to file MANRJE/MJC and then only, the certificate can be issued. Therefore, there is no bar or period of limitation to issue it.

Q 4:- Can a plea of res-judicata be taken up as a preliminary-issue?

Ans:-In Abdul Rahman v. Prasony Bai and another, (2003) 1 SCC 488, the provisions of Order XIV Rule 2 came up for consideration. Where facts are admitted, suit can be disposed of on preliminary issue and no particular procedure need be followed by the Court. It has been held that in particular, if facts are admitted, the issue of res judicata and constructive res judicata and also maintainability of the suit should be decided as a preliminary issue.

Q 5:-  Whether Court commission can be issued if in the evidence of cadestryal surveyer some irugularaties comes which he has not followed?

Bombay High Court

Vijay Son Of Shrawan Shende vs State Of Maharashtra on 4 May, 2009

[v] it would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.

https://indiankanoon.org/doc/817183/

Q 6:- What is the difference in statement recorded under section 281 and 313 of Cr.P.C? If statement under section 313 of crpc is not signed by the accused, what is its effect ? Is it mandatory to obtain signature of accused on 313 statement ?

Ans:- 

Difference

Section 281 CrPC deals with the Record of Examination of accused. It provides the method of recording statement of accused whenever he is examined by the court at any stage of the proceeding.

This clearly indicates that section 281 is generalise provision provided in the CrPC which talks about manner of recording statement and procedure to maintain the record, whenever accused is examined at any stage.


On the other side, Section 313 crpc speaks about power to examine the accused Under section 313 to enable him to explain the any circumstances appearing against him.


While recording statement under section 313, court need to follow the procedure provided in section 281 of CrPC.

Signature

Section 281(5) crpc provides it shall be signed by the accused and by Magistrate or presiding Judge and certify it.

Therefore whenever accused is examined at any stage for any purpose, procedure provided in section 281 needs to be followed. Hence it is mandatory to obtain the signature of accused on statement u/s 313 crpc.



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