Bombay HC: Whether child in conflict with law is not entitled to be released on bail as per S 12 of Juvenile justice Act if he is tried as adult?

 In the aforesaid circumstances, when the Children’s

Court has rejected his application, without adverting to the

said facts and also the statutory mandate of Section 12, is an

unfortunate part. Merely because, he is directed to be tried as

an adult, he cannot be denied the beneft of Section 12. I am

fortified by the earlier view taken by this Court in the case of

Sandeep Ayodhya Prasad Rajak (Bail Application No.3838 of

2021 decided on 22/08/2022) and also in the case of Prasad

Subhash Khade Vs. State of Maharashta (Bail Application

No.1647 of 2020 decided on 18/03/2021).{Para15}

16. In any case, the J.J.Act focuses on a principle of

presumption of innocence and on the principle of best interest

as well as principle of repatriation and restoration, by virtue of

which, the applicant, who is a juvenile, has a right to be reunited with his family at the earliest and to be restored to the

same socio-economic and cultural status that he was in, before

coming under the purview of this Act, unless such restoration

and repatriation is not in his best interest. 

 IN THE HIGH COURT OF BOMBAY

BAIL APPLICATION NO.2282 OF 2021

Date of Order: 21.10.2022

Shubham @ Bablu Milind Vs. The State Of Maharashtra

Hon'ble Judges/Coram:

Bharati Dangre, J.

Citation: MANU/MHOR/142201/2022,2022:BHC-AS:26901

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Uttarakhand HC Rules: Bail Applications Under Section 12 of Juvenile Justice Act to be Considered Even if Child Transferred for Adult Trial

 Even if a CIL is transferred for trial as an adult under Section 18(3) of the Act, his bail application shall be entertained under Section 12 of the Act. This view has been consistently discussed and followed in various judgments of various High Courts. In the case of Ccl A vs. State Nct of Delhi, MANU/DE/1914/2020 : (2020) 10 DEL CK 0155, the Hon'ble Delhi High Court has categorically held that, "even when a child is sent-up for trial as an adult before a Children's Court, the child does not become an adult or 'major', but is only to be treated differently considering the heinous nature of the offence alleged and consequent need for a stricter treatment of the offender, though still as a juvenile in conflict with law." The Hon'ble Delhi High Court further observed that, "even though a child may be sent-up for trial before the Children's Court as an adult, there is no provision in the JJ Act that requires any departure from considering the matter of release of such child on bail under section 12." Similar views have been expressed in the cases of Siddalinga SN Vs. State of Karnataka MANU/KA/0774/2023 : 2023:KHC(BB):9534, and Shubham Alias Bablu Milind Vs. State of Maharashtra, MANU/MHOR/142201/2022. {Para 10}

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No. 273 of 2024

Decided On: 11.06.2024

X Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Ravindra Maithani, J.

Citation:  MANU/UC/0195/2024.

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Whether Special court NDPS, can release vehicle seized in an offence under NDPS Act on Supratnama?

 Even otherwise in the absence of any provision, which bars from release of any vehicle seized, there appears no reason to keep the vehicle in Police custody until the conclusion of the trial. There are various issues related with the upkeep of such articles specially a vehicle. This Court is of the view that the provision of Section 60 of the Act at all does not debar from releasing a vehicle during pendency of the trial. The provision of Section 60 of the Act and Section 451 of the Code act in different spheres. It is the matter of interim custody only. If vehicle is given to it's owner with certain conditions namely producing it whenever called to do so; not changing it's shape without prior permission of the Court; not to transfer it's ownership without prior permission of the Court, etc; the production of the vehicle may be ensured at any later stage of the trial or at the time of confiscation proceeding. {Para 13}

 In the High Court of Uttarakhand at Nainital

(Before Ravindra Maithani, J.)

Abhijeet Kumar Vs State of Uttarakhand.

Criminal Misc. Application No. 368 of 2019

Decided on April 10, 2019,

Citation: 2019 SCC OnLine Utt 265.

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Whether the court can refuse to release juvenile on bail on the ground that offence is non bailable?

 A plain reading of Section 12(1) of the Act reveals

that, any person, who is apparently a child, shall be

entitled to be released on bail with or without surety or

placed under the supervision of a probation officer or under

the care of any fit person. The distinction between bailable

or non-bailable offence has been done away with in respect

of a juvenile. In other words, every juvenile is entitled to be

released on bail except in circumstances where his/her

release will bring him/her into association with any known

criminal or expose him/her to moral, physical or

psychological danger or that his release would defeat the

ends of justice. As per the Section 2 (12) of the Act, ‘child’

means a person who has not completed eighteen years of

age.” {Para 7}

8. Admittedly, the revisionist was about 17 years of

age at the time of incident. From the perusal of the FIR,

the revisionist was driving the offending vehicle at the

relevant point of time; it is a matter of evidence whether the

matter falls within the definition of Section 304A IPC or

Section 304 IPC. As per Section 12 of the Act, the bail can

be refused if there appears reasonable ground for believing

that the release is likely to bring that person into

association with any known criminal. The word ‘known’

has not been used by the Parliament without purpose. By

use of the word ‘known’, the Parliament requires that the

Court must know the full particulars of the criminal with

whom the delinquent is likely to come into association. In

the case in hand, there is no such evidence on record

regarding the same; both the impugned orders are silent

about it; the bail of the delinquent was rejected simply on

the ground that the offence is heinous in nature while

Section 12 of the Act is silent about it.

9. In such view of the matter, this Court has no

hesitation in holding that the Courts below had erred in

law in not releasing the juvenile on bail.

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No.226 of 2021

Ayaan Ali  Vs The State of Uttarakhand 

Coram: Hon’ble R.C. Khulbe, J.

Dated: 16.02.2022

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Whether the court should permit the inquiry officer's change in departmental inquiry if delinquent alleges that inquiry officer is biased?

As far as the main challenge of the petitioner is concerned, it is regarding the change of the Enquiry Officer. We are of the considered view that it would not be proper for this Court to change the Enquiry Officer at this stage of the inquiry. We also say this because there are already observations of the Division Bench of this Court about the change of Enquiry Officer in Writ Petition (S/B) No. 442 of 2019, where the earlier petition of the petitioner (which was primarily for seeking a writ of certiorari to quash the order passed by the Enquiry Officer dated 23.08.2019), was dismissed on 25.09.2019. The observations of the Division Bench of this Court, however, in para 28 of the judgment dated 25.09.2019 passed in Writ Petition (S/B) No. 442 of 2019 reads as under:—

“28. Since the claim of the petitioner that he has suffered prejudice on the failure of the Enquiry Officer to defer cross-examination of PW2 is required to be examined by the Disciplinary Authority in the first instance after completion of the inquiry, and as this Court would ordinarily not interfere with the inquiry proceedings at an interlocutory stage, we see no reason to entertain this Writ Petition. While declaring the law in this regard on whether or not prejudice is suffered on the failure of the Enquiry Officer to defer cross-examination of a witness, suffice it to make it clear that it is open to the petitioner on completion of the inquiry, and on his being afforded an opportunity to put forth his objections to the inquiry report, to also raise this contention of having suffered prejudice, on the failure of the Enquiry Officer to defer cross-examination of PW2. We have no reason to doubt that, on any such objection being raised, the Disciplinary Authority would consider such contentions uninfluenced by any observations made in this order.”

 In the High Court of Uttarakhand at Nainital

(Before Sudhanshu Dhulia and Alok Kumar Verma, JJ.)

Kanwar Amninder Singh 

Versus

Hon'ble High Court of Uttarakhand at Nainital … 

Writ Petition (S/B) No. 282 of 2020

Decided on October 31, 2020

Citation: 2020 SCC OnLine Utt 722

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Whether separate suit is maintainable for execution of consent decree?

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

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Whether issue of res judicata can be decided as preliminary issue?

 Order 14 Rule 1 is in regard to the framing of issues. There are two kinds of issue. First, issue of fact; and second, issue of law. Under sub-rule (2) of Order 14, Rule 2, C.P.C., there is third kind of issue, which is mixed issue of law and of fact. In the present case, plea of res judicata has been taken by the defendant whereupon issue was framed by the trial court and it has been decided in favour of the plaintiffs. An issue of law can be decided as a preliminary issue whereas the mixed issue of fact and law cannot be decided as a preliminary issue. It is well settled that an issue of res judicata is a mixed issue of law and fact and it has to be decided on proper pleadings and evidence of parties. Thus, this Court is of the view that the trial court has committed illegality in deciding the issue of res judicata as the preliminary issue. However, suit need not to be dismissed at this stage under the provisions contained in Order 7 Rule 11 C.P.C and is apparently not barred by any law.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

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Whether subsequent suit can be stayed if application for setting aside exparte decree is pending?

 The object behind enacting Section" 10 of CPC would be that in regard to same property and issues involved between the same party, conflicting findings may not come by the courts. In the present case, the suit filed by the respondent herein has already been decided by ex parte judgment and decree dated 7.4.2003 and only an application under Order 9 Rule 13 is pending adjudication. The question which arises for consideration by this Court is whether mere pendency of an application under Order 9 Rule 13 CPC would tantamount to pendency of suit in the court. In view of this Court, since Original suit no. 487 of 2002 filed by the defendant has been decided by ex-parte judgment and decree dated 7.4.2003, therefore, an application filed by the plaintiffs for setting aside the ex-parte decree cannot be treated as pendency of suit. Thus, the learned revisional court has committed. illegality in allowing the revision partly and in deciding issue no. 3 in favour of defendant and staying the proceedings of original suit no. 49 till the decision in misc. application no. 67 of 2003 under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

Hon'ble Judges/Coram:

Lok Pal Singh, J.

Citation: AIR 2019 Uttar 111

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Compensation increased considering raise in annual notional income of a non-earning member pursuant to 1994 amendment in MV Act

 Admittedly, under the Second Schedule to
Section 163-A of the Motor Vehicles Act, 1988, which was
applicable at the relevant time, the annual notional income of
a person who is a non-earning member is calculated at the
rate of Rs.15,000/- (Rupees Fifteen Thousand Only). However,
after the amendment made in the year 1994 and after the
various decisions of the Hon’ble Apex Court from time to time,
this notional income has to be increased from Rs.15,000/-
(Rupees Fifteen Thousand only) to Rs.30,000/- (Rupees Thirty
Thousand only), which has to be considered by the Tribunal
under the facts and circumstances of each case. In this case,
it has been fixed to Rs.20,000/- (Rupees Twenty Thousand
only) per annum.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No.535 of 2015

Smt. Parwati Devi Vs  Paramjeet Singh

Hon’ble Sudhanshu Dhulia, J. (Oral)
Dated:03.07.2019.

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Whether exparte decree can be set aside if summon was served to wife by paper publication?

Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 502 of 2017

Decided On: 15.11.2018

 Paromita Mondal Vs.  Tarun Kumar Mondal

Hon'ble Judges/Coram:

Ramesh Ranganathan, C.J. and Alok Singh, J.

Citation: AIR 2019 UTTAR 37

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Whether vehicle seized under NDPS Act can be released on Supratnama?

Even otherwise in the absence of any provision, which bars from release of any vehicle seized, there appears no reason to keep the vehicle in Police custody until the conclusion of the trial. There are various issues related with the upkeep of such articles specially a vehicle. This Court is of the view that the provision of Section 60 of the Act at all does not debar from releasing a vehicle during pendency of the trial. The provision of Section 60 of the Act and Section 451 of the Code act in different spheres. It is the matter of interim custody only. If vehicle is given to it's owner with certain conditions namely producing it whenever called to do so; not changing it's shape without prior permission of the Court; not to transfer it's ownership without prior permission of the Court, etc; the production of the vehicle may be ensured at any later stage of the trial or at the time of confiscation proceeding.

In the High Court of Uttarakhand at Nainital

(Before Ravindra Maithani, J.)

Abhijeet Kumar  v. State of Uttarakhand 

Criminal Misc. Application No. 368 of 2019

Decided on April 10, 2019,

Citation: 2019 SCC OnLine Utt 265

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What are necessary conditions for proof of breach of injunction?

 For invoking power under Order 39 Rule 2-A, the following three conditions must be satisfied, namely:- (i) there should be an order of injunction (ii) other party has knowledge about the injunction order and (iii) the said injunction order is violated or disobeyed.

THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal From Order No. 344 of 2013

Decided On: 31.07.2018

Ashraf Ahmad  Vs. A.S. Bhartari and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Tiwari, J.

Citation: AIR 2018 Uttarakhand 198

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Whether cruelty to wife was proved even if she has failed to produce medical certificate of injury caused to her?

Learned Trial Court observed that burden to prove cruelty lies on the appellant and the appellant has failed to do so because she has not enclosed medical report. In our opinion, it is not always possible to do medical for every injury. It is tendency in our society to avail home remedies and to avoid doctors as far as possible, until or unless injury or disease is not very serious. Even otherwise, had the appellant gone to doctor for medical treatment, even then, it cannot be presumed that appellant would keep the prescription of doctor assuming that in future, she will file a Court case and medical prescription would be required in the matter. So we are convinced with the arguments of learned Counsel for the appellant.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 105 of 2011

Decided On: 23.07.2018

 Sonia Vs. Sanjay Mehta

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Whether claim of wife for return of gifts items can be rejected if she has failed to produce bills of those items?

Third issue was whether appellant is entitled for items mentioned in the list. Appellant in her statement has categorically mentioned the items given in marriage. Learned Judge Family Court believed the version of respondent/husband that he had returned the items of appellant, however, disbelieved the version of appellant without any reason. He further observed that there was no bill of any item and no gift item was given in the marriage. Appellant in her statement categorically mentioned the list of items given in the marriage. In our opinion, nobody keeps bill of purchased item unless item is so expensive and it cannot be believed that in the marriage, nobody would not give any gift.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 105 of 2011

Decided On: 23.07.2018

 Sonia Vs. Sanjay Mehta

Hon'ble Judges/Coram:

Rajiv Sharma and Alok Singh, JJ.

Citation: AIR 2018(NOC) 882 UTR

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Whether Taking Loans In Wife’s Name And Failing To Repay Them Amounts To Cruelty?

There is specific averment that respondent is in habit of taking loans and he also took loan in the name of wife i.e. appellant and he also made her guarantor in some loans. He failed to repay his loans and as a result, appellant faced embarrassment. Respondent along with friends cheated one Ms. Dolly Gujral, who lodged FIR against them under various sections of IPC in police station Raipur, Dehradun. Respondent used filthy language and had not spent time with appellant. He spent most the time with one lady, who is residing in the same apparent where parties lived. He also gave beatings to his wife i.e. appellant.

6. Taking of loan is neither an offence nor shameful act but failed to repay it may cause embarrassment, as lender comes to recover his loan by any means. It also maligns the reputation of a person is society. Appellant is a house wife. Respondent also took loan in the name of his wife / appellant and also made her guarantor. Appellant has no source of income and she was deserted by her husband. In such circumstance, it was very painful for her to live because she has no source of income but has to repay the loan.

7. Learned Judge Family Court failed to appreciate evidence in right prospect. Learned Judge Family Court treated the condition of parties, as if they are living in penury while the fact is respondent / husband had taken various loans including for purchasing of luxury cars but he is not repaying the loans, which causes embarrassment and mental agony to the appellant.

8. In view of law laid down by Hon’ble Apex Court in the case of Maya Devi Vs. Jagdish Prasad reported in AIR 2007 SC 1426 it can safely be said that all the activities and conducts of the

husband respondent are sufficient to establish the cruelty meted out by him to appellant.

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

First Appeal No. 133 of 2017

Smt. Manpreet Verma. Vs  Brij Verma.

Coram:

Hon’ble V.K. Bist, J.

Hon’ble Alok Singh,J.

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How to ascertain jurisdiction of court to appoint arbitrator in case of dispute relating Machine attached to earth?

The subject matter of the suit is “hydraulic compressors” which is admittedly an “immovable property”. We have to look at first Section 3 of the Transfer of Property Act, 1882, which reads as under:

“3 Interpretation clause. - In this Act, unless there is something repugnant in the subject or context-

“immovable property” does not include standing timber, growing crops or grass;”

8. The above definition is not of much help to us but the relevant provision to us is sub-section (26) of Section 3 of the General Clauses Act, 1897, which reads as under:

“3. Definitions. - In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context-

(26) “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.”

9. In view of the above, anything attached or permanently fastened to earth becomes “immovable property”. There can be no dispute that the subject matter of the present dispute is “hydraulic compressor” which is fastened to earth in Delhi, which is hence an immovable property in Delhi. Therefore, under Section 16 of the Code of Civil Procedure the courts which will have the jurisdiction to decide are courts in Delhi, as the property which is an immovable property is in Delhi. 

In the High Court of Uttarakhand at Nainital

(Before Sudhanshu Dhulia, J.)

Sri. Hanuman Trust  v. Indian Compressor Limited, 

Arbitration Petition No. 32 of 2014

Decided on March 26, 2018, 

Citation: 2018 SCC OnLine Utt 211

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Procedure to be followed by court if there is conflict between Hindi and English version of law

"Under Article 345, the Legislature of a State may adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purpose of the State. This power is subject to Articles 346 and Article 347 of the Constitution of India. It is, apparently, in terms of Article 345 that the Uttar Pradesh Legislature has passed the two laws, which we have adverted to namely, Uttar Pradesh Language (Bills and Acts) Act, 1950 and Uttar Pradesh Official Language Act, 1951. By virtue of these laws, undoubtedly, the State has adopted Hindi as the language for the purpose of enacting laws be they plenary or subordinate legislation, but it is hedged in with the limitation contained in Article 348(3) of the Constitution. Under Article 348(3), it becomes the duty to publish the translation of the law, which is made in the official language other than English. The publication of the translation is to be done under the authority of the Governor of the State in the official gazette of the State. Sub Article (3) of Article 348 further declares unambiguously that it shall be deemed to be the authoritative text of the English language under Article 348. It must be remembered that Article 348(1) provides that the authoritative texts of all Bills and Acts, inter alia, are to be in English language. It is to provide for the contingency where a State adopts any other language as its official language that the founding fathers provided for a translation to be made of the law into English, which is made by the Legislature in a language other than English. This English version is, undoubtedly, to be treated as the authoritative text within the meaning of Sub Article 1 of Article 348 of the Constitution of India."

21. Having thus referred to the various provisions of law, we must consider the effect of any ambiguity, which may exist between the two versions, namely, (i) English language and (ii) any other language, which may be the official language of the State concerned. There can be broadly two situations to our mind. As in the case of Nityanand Sharma (supra) and Prabhat Kumar Sharma (supra), the original version of a law may be published in the English language. It may be followed by the Hindi version of the same. The second possibility is where the law may be made in the official language of the State concerned, as in the case of State of Uttar Pradesh where Hindi is the official language. A law may be made in Hindi language; it must be followed by an English translation within the meaning of Article 348(3), which is to be treated as authoritative text under Article 348(1). In a case where a law is made in English language and a confusion arises on account of the translation found in the Hindi version, quite clearly, dominance would be accorded to the English version. When a law is made, however, in the official language, other than English language as say the Hindi language as in the facts of this case and a discrepancy occurs when the translation takes place, it can give rise to two broad situations again. The first situation would be on account of the inadequacy or ineptitude of the translator, a doubt or ambiguity may be created by virtue of the translation made under Article 348(3) of the Constitution. While, it is true that Article 348(1) declares that the translation published under Article 348(3) will be the authoritative text within the meaning of Article 348(1), as the duty of the Court is to give effect to the intention of the Legislature, every effort must be made to reconcile the differences. An attempt must be made to find out the intention of the law-giver. Both the Hindi version and the English version can be looked into and the Court would be acting within its powers in adopting the version, which best accords with the intention of the Legislature, applying various Rules of interpretation and in particular, the purpose Rule.

22. The second category of cases is those cases, where there is a conflict between the two versions, namely, the Hindi and the English. If there is a conflict between the Hindi version and the English version, it is our view that it is the translation published under Article 348(3), of the law, in English, which would prevail. This view of ours is arrived at by following what has been laid down by not only the Hon'ble Apex Court in Park Leather Industry's case (supra) but also by the seven Judges Bench of the Allahabad High Court in Mata Badal Pandey's case (supra).

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 593 of 2017

Decided On: 18.09.2017

Shahjahan Baigam Vs.  District Magistrate Udham Singh Nagar and Ors.

Hon'ble Judges/Coram:

K.M. Joseph, C.J. and Alok Singh, J.

Citation: AIR 2017 Uttar 200

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Whether proceeding for divorce will be barred by res judicata if there is decree or dismissal of suit for restitution of conjugal rights?

To elucidate it further, the conjoint consideration of Section 9 read with Section 13A is relevant.

6. Whereas Section 13A of Hindu Marriage Act, 1955 deals with the alternative relief in divorce proceedings where the Court in the principal proceedings under Section 13(1) and in its sub-clauses, alternatively feels instead of dissolving the marriage, to grant a decree of 'judicial separation' and, yet again is only an enabling provision to the Court to have an alternative recourse of judicial separation instead of dissolving the marriage under Section 13 for raising institution of marriage. It would be reasonable to infer that the invocation of Section 13A is enabling the Court to have a situation to meet and grant an alternative decree of judicial separation instead of dissolution of marriage.

7. If both the provisions if are scrutinized harmoniously, the Legislature in all its wisdom had provided that the two sections i.e. Section 9 and Section 13A of Hindu Marriage Act, 1955. Provided to meet a separate set of contingencies, while maintaining a matrimonial relationship and its continuance. Under no set of circumstances or reasonableness, Section 9 deals or touches the issue, which is either covered by Section 13 or by Section 13A of the Hindu Marriage Act, 1955. Thus, both the provisions are divergent to one another one aims to bring family together and the other is a judicial process to separate the family for the grounds provided under Section 13 of Hindu Marriage Act, 1955 and to meet a different purpose. Hence adjudication made by the Court under any of the aforesaid provisions, this Court feels would not attract Section 11 of the Code of Civil Procedure to create a Bar in filing of a subsequent suit under either of the provisions under Section 9 or 13A of Hindu Marriage Act, 1955.

8. Even otherwise also, if a proceeding under Section 9 is initiated by any other party to the family disputes, its allowing would be ending up of the controversy between the parties or will aggravate the dispute between them. Allowing or rejection of Section 9 will not create any impediment for Section 13 and Section 13A, as they are independent to Section 9. Thus Section 9 will not eclipse the statutory effect of Section 13A. Thus, the bar of Section 11 of Code of Civil Procedure will not come into to play.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 552 of 2015

Decided On: 22.06.2017

Balveer Singh Vs. Harjeet Kaur

Hon'ble Judges/Coram:

Rajiv Sharma and Sharad Kumar Sharma, JJ.

Citation:AIR 2017 UTTAR175

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Whether in arbitration proceeding parties can exclude jurisdiction of all other courts where more than one court has jurisdiction?

I think the controversy has been set at naught by the latest judgment of the Hon'ble Apex Court rendered in Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited & Ors., MANU/SC/0456/2017 : 2017(5) Scale 60. In this judgment, Hon'ble Supreme Court has taken note of all other several cases, which have also been referred by both the parties before me. The Apex Court reiterated that once the seat of arbitration has been fixed, it would have in the nature of exclusive jurisdiction clause as to the courts which exercise supervisory powers over the arbitration. In paragraphs 20 and 21 of such judgment, the Hon'ble Apex Court has further held as under:

"20. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction - that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Section 16 to 21 of the CPC be attracted. In arbitration law however, as has been held above, the moment "seat" is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties.

21. It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts."

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Civil Revision No. 35/2017 and Appeal from Order No. 275/2017

Decided On: 31.05.2017

Nagar Palika Parishad Vs.Ramesth Construction Pvt. Ltd.

Hon'ble Judges/Coram:

S.K. Gupta, J.

Citation: AIR 2017(NOC)1046 UTR

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Whether principle of Res judicata is applicable to consent order?

A relief if it is not granted or if the judgment is silent regarding a particular relief; it is, both, in accordance with the principle of res judicata enumerated in Section 11 of the Code of Civil Procedure and also in accordance with general principle of res judicata, which, undoubtedly, applies to writ petitions also; it must be taken to have been impliedly refused and the bar of res judicata applies. In this case, the reasoning given by the Court would leave us in no doubt that the Court was not inclined to grant the relief as sought for. In fact, the Court had disposed of the writ petition in terms of the earlier judgment, wherein the Court had closed the matter.

52. That was a case, where there was a decision by the court on merits and not on consent and a particular prayer was refused by implication and, hence, it was held to be res judicata; but, in this case, we have first of all noticed that there is no decision. While Section 11 of the Code of Civil Procedure as such is not applicable to Article 226 and Section 11 only recognizes certain basic principles about the doctrine of res judicata, it is necessary to advert to the scheme of Section 11. In our view, the purpose appears to be to preclude the court from hearing the matter, which was directly and substantially in issue in a former proceeding between these parties, which was heard and finally decided by the said court. The Explanations intend to both clarify and enlarge the scope of the provision. An instance of enlarging the scope of the main provision is contained in Explanation IV, which provides that a matter, which might and ought to have been made ground of defence or attack in a former suit, is to be treated as a matter, which was directly and substantially in issue in the suit. Equally Explanation V also purports to deal with the case, where, though the court has neither granted nor refused expressly a relief, which was sought in the earlier suit, the law deems that in the case of silence in the matter the relief was refused. Explanation IV sets out the principle of constructive res judicata. We would think that, while it does expand the principle of res judicata; in that, a matter, which was not decided actually, is still regarded as barred by res judicata though it was not expressly finally decided by the court, it cannot apply to a case, where there is only a consent decree. This is for the reason that, running as a golden thread through the provisions, is the principle that the earlier suit must have been decided finally on merits. If a matter is heard and finally decided, then, provided the conditions are otherwise satisfied, a matter, which could have been raised by the plaintiff or by the defendant (ground of defence or attack), would be deemed to have been decided. This salutary principle is intended to advance the cause of justice by preventing parties from omitting or refusing to take up all the contentions, which they ought and might have taken. This principle, itself, is undoubtedly subject to many limitations, which, for a decision in this case, need not detain us. Suffice it to say, as already noticed, we cannot allow it to be invoked by the respondents in a case, where the earlier case itself was not finally heard and decided; but, instead, it was disposed of on consent.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 14 of 2015

Decided On: 12.05.2017

 Rajesh Goyal and Ors. Vs. State of Uttarakhand and Ors.

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