Saturday, 28 November 2020

Questions and answers on law part 16

Q. 1:-Whether Tender contract comes under commercial dispute under Commercial Courts Act?

Ans:  Commercial Courts Act
2. Definitions.—(1) In this Act, unless the context otherwise requires,—(c“commercial dispute” means a dispute arising out of—
(vi) construction and infrastructure contracts, including tenders;


Q. 2 :- Whether civil revision is tenable if court fails to award costs while deciding suit?

Ans:- The discretion vested in the courts in the matter of award of costs is subject to two conditions, as is evident from section 35 of the Code:

(i) The discretion of the court is subject to such conditions and limitations as may be prescribed and to the provisions of law for he time being in force (vide sub-section (1)]

(ii) Where the court does not direct that costs shall follow the event, it shall state the reasons in writing [vide sub-section (2)].

The mandate of sub-section (2) of Section 35 of the Code that "where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing" is seldom followed in practice by courts. Many courts either do not make any order as to costs or direct the parties to bear their respective costs without assigning or recording the reasons for giving such exemption from costs. Unless the Courts develop the practice of awarding costs in accordance with Section 35 (that is, costs following the event) and also give reasons where costs are not awarded, the object of the provision for costs would be defeated.

on a careful reading of Section 35 of CPC gives us an indication that awarding the costs in civil cases is discretionary. but the discretionary power has to be used carefully and not arbritrarily.

Section 115 of CPC relating to civil revision:

1[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:


When the power is vested with the court and the court fails to exercise the power. In my view revision lies if court fails to award costs while deciding suit.

Q. 3:- Whether court can restore appeal in partition suit after passing of seven years?

Ans:- The court can restore the appeal even after the delay of seven years. but it all depends upon the facts and circumstances of each case. if the applicant is able to convince the court that, he has prevented from " sufficient cause" the delay can be condoned. here should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay - Courts are not supposed to legalize injustice but are obliged to remove injustice - Substantial justice being paramount and pivotal technical considerations should not be given undue and uncalled for emphasis -No presumption can be attached to deliberate causation of delay but, gross negligence on part ofcounsel or litigant is to be taken note of.

Relevant caselaw on the point is:

Supreme Court Basic principles to be followed by court while deciding application for condonation of delay 

Q. 4:-How to prove the  Facebook evidence in trial ?

Relevant article on the point:

https://www.page-vault.com/resources/is-facebook-evidence-admissible-in-a-court-of-law/

Q 5:-Whether non contesting defendant can prefer appeal under section 96 of C P C?

Ans:- Yes, If he is aggrieved by decree passed by court?

Q 6:- Can a foreign citizen claim tenancy protection under the Maharashtra Rent Control Act?

 For properly appreciating rival contentions, a reference will have to be made to Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, which reads as follows :-

"3. Exemption - (1) This Act shall not apply -

(a) .............................................................................

(b) to any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies, multinational companies, and private limited companies and public limited companies having a paid-up share capital of rupees one crore or more."

Foreign citizen does not come within bar of S 3(1) (b) of MRC Act, hence he is entitled to get protection of rent law.

Q 7:- Can a case be filed under Order 37 of CPC for non payment of salary and other dues?

Ans:- Supreme Court of India in the case of

M/S V.K.Enterprises & Anr vs M/S Shiva Steels on 4 August, 2010, in para 8 of the judgment it has held that---

8. Order XXXVII C.P.C. has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit. The Courts have consistently held that if the affidavit filed by the defendant discloses a triable issue that is at least plausible, leave should be granted, but when the defence raised appears to be moonshine and sham, unconditional leave to defend cannot be granted. What is required to be examined for grant of leave is whether the defence taken in the application under Order XXXVII Rule 3 C.P.C. makes out a case, which if established, would be a plausible defence in a regular suit.

Keeping in view the aforesaid legal position, answer to the question would be that only in case if there is a clear and undisputed claim in respect of salary and other dues, a case may be filed under Order 37 of C.P.C., otherwise not.

Q 8:- Whether civil revision is maintainable against the order passed in the application under S 151 of CPC?

 Ans:- Learned Counsel for the parties have been heard. The revision has to be admitted. I do not find any force in the contention that an order under Section 151 of the Code of Civil Procedure being discretionary is not revisable . An order under Section 151, C.P.C. is not appealable hence revision is maintainable against such order.

 IN THE HIGH COURT OF GUJARAT

Civil Revn. Appln. No. 1072 of 1998

Decided On: 31.08.1998

Zakinaben  Vs. Babubhai Alimohmad Kapadia and Ors.

Hon'ble Judges/Coram:

D.C. Srivastava, J.

Citations: AIR 1999 Guj 118, (1999) 1 GLR 122,MANU/GJ/0235/1998

Read full Judgment here: Click here



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