What is distinction between concept of cruelty U/S 498A of IPC and Under Civil law or Matrimonial law?

 C. Veerudu Vs. State Of A.P.(1989) CR. L.J. NOC 52(A.P.)

• S. 498 A The sole constituent of offence u/s 498 A is cruelty which means 'wilful conduct'. The Word wilful contemplates obstinate and deliberate brhaviour on part of offender for it to amount to cruelty. Thus 'Mensrea' is an esssential ingredient of the offence.
• The principles are that the standard of proof of cruelty are higher in degree in criminal law than in civil law under the matrimonial causes.
• The intention or mensrea on the part of one spouse to injure the other is not a necessary element of cruelty in civil law for martimonial causes while it is an essential element in criminal law.
• It is enough if crulety is proved by preponderance of probabilities in civil law while in criminal trials the coduct of cruelty has to be proved beyond all resonable doubt.
• It is immaterial in civil law whether respondent's conduct was aimed at the other spouse or is due to unwarranted indifference attributable perhaps to selfishness or laziness while it is very much material in criminal proceeding and for relief of matrimonial causes in civil law the conduct of spouse need not necessarily result in danger to life, limb or health but a reasonable apprehension of such danger is enough, whereas section 498 A contemplates such a conduct besides being wilful to result in the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life, limb or health.

[ In the High Court of Andhra Pradesh, Criminal Appeal No. 756 of 1987. ] 1

VEERULU V/S STATE OF ANDHRA PRADESH, decided on Friday, June 10, 1988.  Judge(s) : BHASKARA RAO. Read full Judgment here: Click here.

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What is the difference between the jurisdiction of the court under civil law and criminal law?

 While the question of territorial

jurisdiction in civil cases, revolves mainly around (i) cause of

action; or (ii) location of the subject matter of the suit or (iii) the

residence of the defendant etc., according as the case may be,

the question of territorial jurisdiction in criminal Cases revolves

around (i) place of commission of the offence or (ii) place where

the consequence of an act, both of which constitute an offence,

ensues or (iii) place where the accused was found or (iv) place

where the victim was found or (v) place where the property in

respect of which the offence was committed, was found or (vi)

place where the property forming the subject matter of an

offence was required to be returned or accounted for, etc.,

according as the case may be.

19. While jurisdiction of a civil court is determined by (i)

territorial and (ii) pecuniary limits, the jurisdiction of a criminal

court is determined by (i) the offence and/or (ii) the offender.

But the main difference between the question of jurisdiction

raised in civil cases and the question of jurisdiction arising in

criminal cases, is twofold.

(i) The first is that the stage at which an objection as to

jurisdiction, territorial or pecuniary, can be raised, is

regulated in civil proceedings by Section 21 of the Code of

Civil Procedure, 1908. There is no provision in the Criminal

Procedure Code akin to Section 21 of the Code of Civil

Procedure.

(ii) The second is that in civil proceedings, a plaint can be

returned, under Order VII, Rule 10, CPC, to be presented to

the proper court, at any stage of the proceedings. But in

criminal proceedings, a limited power is available to a

Magistrate under section 201 of the Code, to return a

complaint. The power is limited in the sense (a) that it is

available before taking cognizance, as section 201 uses the

words “Magistrate who is not competent to take

cognizance” and (b) that the power is limited only to

complaints, as the word “complaint”, as defined by section 2(d),

does not include a “police report”.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRL.) NO.456 OF 2019

KAUSHIK CHATTERJEE  Vs STATE OF HARYANA 

Dated: SEPTEMBER 30, 2020

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Whether time spent in proceeding with application U 9 R 13 of CPC can be condoned in filing of first appeal?

As pointed out earlier, an appeal under Section 96 CPC is a
statutory right. Generally, delays in preferring appeals are
required to be condoned, in the interest of justice, where there is
no gross negligence or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation of delay.
17. In the case in hand, respondents No.1 to 13 filed a suit for
partition in the year 2007, which was decreed ex-parte on

04.07.2008. Appellant and respondents No.14 and 15 filed
application under Order IX Rule 13 CPC and the same came to
be dismissed on 06.08.2010. Being aggrieved by dismissal of
application under Order IX Rule 13 CPC, the appellant and
respondents No.14 and 15 preferred an appeal under Order XLIII
Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was
pending for about three years and the same was withdrawn on
11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the
appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree and judgment dated 04.07.2008
passed in Regular Civil Suit No.35 of 2007. It cannot be said that
the appellant and respondents No.14 and 15 were grossly
negligent in pursuing the matter more so, when the decree was
passed in the suit for partition.
18. It is pertinent to note that as per Section 97 CPC where any
party aggrieved by a preliminary decree does not appeal from
such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree. The
object is that the questions decided by the court at the stage of
passing preliminary decree cannot be challenged at the time of
final decree. If no appeal had been preferred against the

preliminary decree, the suit filed by the respondents-plaintiffs
being a suit for partition, the appellant would be deprived of the
opportunity in challenging the decree on merits. In the interest of
justice, the appellant and respondents No.14 and 15 are to be
given an opportunity to challenge the ex-parte decree dated
04.07.2008 on merits, notwithstanding the dismissal of their
application filed under Order IX Rule 13 CPC.
19. In the facts and circumstances of the present case, the time
spent in pursuing the application under Order IX Rule 13 CPC is
to be taken as “sufficient cause” for condoning the delay in filing
the first appeal. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019

BHIVCHANDRA SHANKAR MORE Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

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Whether second appeal is maintainable against order passed in application under O 21 R 97 of CPC?

When the application of Order 21 Rule 97 CPC is adjudicated, it is enveloped within the definition of decree and first appeal having been preferred, the provisions of CPC will come into play. When the proceeding of this character reach the District Court in a state of appeal, the procedure which is prevailing in ordinary Court of the country with regard to the proceeding, the ordinary Rule of CPC will apply.

7. In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."

8. In this case against the adjudication of decree first appeal was preferred by ordinary application of civil procedure code, therefore, if the first appeal is adjudicated by ordinary application of procedure of CPC, second appeal would lie.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

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When court can take note of subsequent events occurred during pendency of suit?

Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta v. Ranbir B. Goyal MANU/SC/0035/2002 : (2002) 2 SCC 256, this Court held as under:

11. The ordinary Rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the Rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders MANU/SC/0415/1975 : (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the Rules of procedure if no specific provision of law or Rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) Rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the Rules of fairness to both sides should be scrupulously obeyed.
Om Prakash Gupta's case was referred with approval in Ram Kumar Barnwal v. Ram Lakhan (Dead) MANU/SC/7670/2007 : (2007) 5 SCC 660.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1008 of 2017 (Arising out of Special Leave Petition (C) No. 19117 of 2013)

Decided On: 07.02.2017

 Nidhi Vs. Ram Kripal Sharma (D) thr. L.Rs.

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When a judgment is considered as judgment on merits?

 

The appellant contends that the order of the English Court is not given
on merits and that it falls under Section 13(c) of the CPC as a result of
which it is not conclusive and therefore inexecutable. We cannot accept
such submission. A judgment can be considered as a judgment passed
on merits when the Court deciding the case gives opportunity to the
parties to the case to put forth their case and after considering the rival
submissions, gives its decision in the form of an order or judgment, it iscertainly an order on merits of the case in the context of interpretation of

Section 13(c) of the CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 19791 OF 2013
M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC253

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When recall of witness is not permissible to fill up the lacunae in civil litigation?

 In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.

Supreme Court of India

Vadiraj Naggappa Vernekar (D) Th. ... vs Sharad Chand Prabhakar Gogate on 24 February, 2009

Bench: Altamas Kabir, Cyriac Joseph

Citation:AIR 2009 SC 1604,2009 SAR(CIVIL)403,

2009(5) MHLJ 142

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How to prove evidence of CD in Civil or matrimonial proceeding?

Equivalent Citation: 2011(2)ALLMR577, 2011(3)BomCR100, 2011(113)BOMLR479, 2011(3)MhLj564

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

Mrs. Havovi Kersi Sethna Vs. Mr. Kersi Gustad Sethna

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Law of Evidence - Tape Recorded Conversation - Admissibility thereof in evidence - Held, it is settled law that tape recorded conversation is admissible in evidence. The appreciation of evidence would require consideration of three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately. Notice of motion disposed of.

Law of Evidence - Sealing of recorded conversation - Recording of Evidence Tape Recorded Conversation - Held, the requirement of sealing the recorded conversation would not be applicable in this case. This is a civil trial. There is no question of sealing of a conversation recorded by a party to the civil lis himself. The sealing requirement is only in criminal trials. Notice of motion disposed of.

Tape recorded conversation is admissible in evidence provided the identification, relevancy and accuracy of same is proved.

Requirement of sealing of recorded conversation used as evidence is not applicable to a civil trial but is applicable only to a criminal trial.

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Whether suit can be dismissed if plaintiff deliberately remains absent before court commissioner for getting her evidence Recorded?

The Court Commissioner has also in her two reports dated 16 th April, 2014 and 11th September, 2014, set out in detail the number of meetings held and the opportunities given to the appellant to present herself for recording  of her evidence. The appellant had made it impossible for her evidence to be recorded by the Court Commissioner. Considering the conduct of the appellant, as is evident from the record, no indulgence whatsoever is warranted.

Bombay High Court

Devyani G. Patel Shah vs Pankaj Shah And Anr on 19 January, 2015

Citation; 2015(5) ALLMR864

CORAM : V.M.KANADE & REVATI MOHITE DERE, JJ.

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Whether court can recall its order when judgment is rendered in ignorance of fact that necessary party has not been served at all?

 In my view application made by the petitioner in Writ Petition No.4797 of 2013 was also maintainable under section 151 of the Code of Civil Procedure though the petitioner was not a party to the suit. In my view, the court has inherent power to recall and set aside the order obtained by fraud practiced upon the court or when the court is mislead by the party. The court can also recall its order when a judgment is rendered in ignorance of the fact that a necessary party had not been served at all.

Bombay High Court

Shri. Horace Kevin Gonsalves vs Miss. Prabha Ganpat Borkar Alias ... on 28 January, 2015

Bench: R.D. Dhanuka

Citation;AIR 2015(NOC)542 Bom

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How to ascertain Meaning of “expression accidental omission” in judgment and order?

  Now we have to examine whether by  the  impugned  order,  the
      High Court has only corrected the clerical, arithmetical or accidental
      omission in the decree passed or not.  To appreciate the  same,  first
      we think it necessary to mention  as  to  what  the  word  “expression
      accidental omission” means.  In Master Construction Co. (P)  Ltd.  Vs.
      State of Orissa and Another AIR 1966 SC 1047, expression –  accidental
      slip or omission has been explained as an  error  due  to  a  careless
      mistake or omission unintentionally made.  It is further  observed  in
      the said case that there is another  qualification,  namely,  such  an
      error shall be apparent on the face of the record, that is to say,  it
      is not an error which depends for its discovery,  elaborate  arguments
      on questions of fact or law.
REPORTABLE



                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NOs.2352-2354 OF 2008



      SRIHARI     V  SYED MAQDOOM SHAH  
Citation;2014 ALLSCR3634
Read original judgment here; click here

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Good legal article on notice under s 80 of CPC

(1) Save as otherwise provided in sub-s. (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of

(a) In the case of a suit against the Central Government except where it relates to a railway, a Secretary to the Government;

(b) In the case of a suit against the Central Government where it relates to a railway. General Manager of that Railway;

(bb) In the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) In the case of a suit against any other State Government a Secretary to that Government or the Collector of the District: and, in the case of public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit return the plaint for presentation to it after complying with the requirements of sub-section (1).

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What is distinction between preliminary decree and final decree?

A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held and pursuant to the result of further inquiry a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree. (See: CPC by Mulla Vol. 1, 1995 Edn., page 21). The distinction between preliminary and final decree is this: a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree.

Supreme Court of India

Renu Devi vs Mahendra Singh And Ors. on 4 February, 2003

Equivalent citations: AIR 2003 SC 1608, 2003 (51) BLJR 699

Bench: R Lahoti, B Kumar

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