Wednesday, 11 November 2020

Questions and answers on law part 13

Q.1:- Under which circumstances prosecution can adduce evidence on affidavit?

Ans:- Normal rule is that Court should record every evidence in oral before it according to section 272 to 294. But there are some exceptions like section 295 and 296 of Cr.P.C.

Prosecution can adduce evidence on affidavit in exceptional circumstances like section 295 and 296 of Cr.P.C.

295. Affidavit in proof of conduct of public servants.—When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servants, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given.

296. Evidence of formal character on affidavit.—(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

Q. 2:-   Landlord has agreed to provide alternative accommodation to tenant. Accordingly consent decree was passed. Thereafter landlord failed to provide alternative accommodation to tenant. How court can execute consent decree for alternative accommodation by tenant?

Ans:-The settled legal position, as discussed hereinabove, is that the consent decree is binding. It is an agreement between the parties with the approval of the Court. It may not act as res-judicata but it acts as estoppel. If for the enforcement of a consent decree, a separate suit is permitted to be filed, it will give rise to the multiplicity of the suit. It would be against the intention of the legislature as embodied under Order 23 Rule 3A of CPC. The suit, as such, is not maintainable. The decree passed in Divorce Suit No. 432 of 2007 dated 13.02.2008 is binding upon both the parties. In case of any violation, the Court, which passed the decree, may be moved by the aggrieved party. In case of defiance, the party, effected thereby, may file an execution proceeding. In such execution proceedings definitely all the questions relating to execution, discharge and satisfaction of decree shall be determined. Therefore, while holding that the consent decree passed in Original Suit No. 432 of 2007 has binding effect and no separate suit can be filed to enforce it, this Court is of the view that the suit is not maintainable to enforce the consent decree and accordingly, the suit ought to have been dismissed on this ground alone. Therefore, the appeal deserves to be allowed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 38 of 2015

Decided On: 23.10.2019

Vineet Kumar Jain Vs.  Archana Garg

Hon'ble Judges/Coram:
Alok Singh and Ravindra Maithani, JJ.

Citation: AIR 2020(NOC) 15 UTTAR

Q.3:-  Whether application for temporary injunction is maintainable in application for execution of decree?

Ans:- It is maintainable under Section 94 or Section 151 of CPC in execution of decree.

but if the application is filed under Or. 39 rule 1 and 2 of CPC it is not maintainable. the opening word of Or.39 rule 1 of CPC is as under;

1. That any property in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

2. That the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

3. That the defendant threatens to dispossess, the plaintiff or otherwise cause injuries to plaintiff in relation to any property in dispute in the suit.

Or. 39 rule 1 applicable to the suit.

whereas Section 94 of CPC reads thus

In Order to prevent the ends of justice from being, defeated the Court may, if it is so prescribed,-


(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any Order for security commit him so the civil prison;


(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or Order the attachment of any property;


(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and Order that his property be attached and sold;


(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;


(e) make such other interlocutory Orders as may appear to the Court to be just and convenient.

and in Section 151 of CPC the executing court enjoys unfettered discretion to grant TI.

Q.4:-  Which offences are bailable in SC and ST Atrocities Act?

If the Act has not specifically provided which offences are bailable and which are not, then as per second schedule of Cr.P.C and the punishment prescribed, the nature of offence will have to be ascertained.
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