The appeal before the learned District Judge was one under Order 43, Rule 1 (r), C. P. C. and not a regular appeal. Jurisdiction of the appellate Court while deciding appeal of such a character extends only to examine the validity of an order enumerated in Clause (r) of Order 43, Rule 1, C. P. C., which runs as under :
"An appeal shall lie from the following orders under the provisions of Section 104, namely :--
(r) an order under Rule 1, Rule 2, (Rule 2-A), Rule 4 or Rule 10 of Order XXXIX."
Accordingly, the scope of such appeal is limited. It extends to adjudication of challenge to an order of grant or refusal of interim injunction as envisaged by Order 43, Rule 1 (r), C. P. C. As such, the learned District Judge has no seisin over the suit as such. He was seized of proceedings for issuance of a temporary injunction in the suit and not of the suit itself. This aspect of the law appears to have been overlooked by the learned District Judge.
As a logical corollary flowing from the aforesaid position of law, it has to be concluded that the learned District Judge had no jurisdiction to entertain the application for amendment of the plaint submitted before him by the plaintiff-applicant herein. If the applicant herein (plaintiff) chose to submit the application in the appeal preferred by the defendants before the learned District Judge, only courses which would have been adopted by the learned District Judge were (a) to direct the plaintiff to submit the amendment application before the trial Court; and (b) to forward it to the trial Court for decision in accordance with law after deciding the appeal on merits. However, he had no jurisdiction to decide the application for amendment of the plaint on its merits.
In spite of this, the scope of the appeal under Order 43, Rule 1 (r) is restricted as discussed above to examine the propriety and/or legality of order passed under the various rules of Order 39 referred therein. A distinction has to be made between the scope of regular appeal and a miscellaneous appeal under the aforesaid provision. While deciding the appeal of former character the appellate Court has, on the theory that appeal is continuation of suit, power to allow amendment in the pleadings, but in an appeal of the later type the appellate Court has jurisdiction only to adjudicate upon the correctness or otherwise of order refusing or granting an interim injunction. The position of trial Court in such a situation appears to be different, as the trial Court is in seisin of the suit as well as of application for issuance of a temporary injunction made in the suit. The powers exercisable by an appellate Court while hearing appeals preferred under Order 43, Rule 1 (r) cannot be regarded to extend to allowing amendment of the plaint, as he is not in seisin of the suit as such.
In the present situation, the word 'proceeding' connotes merely an application for issuance of a temporary injunction and/or its reply. Accordingly, where the plaintiff-applicant moves an application for amendment of the application for issuance of temporary injunction, the appellate Court may be regarded to have jurisdiction to decide it.
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
Civil Revn. No. 272 of 1979
Decided On: 25.02.1981
Dhundasingh Vs. Leeladhar and Ors.
Hon'ble Judges/Coram:
H.G. Mishra, J.
Citation: 1982 AIR MP 14,1981 SCC ONLINE MP, MANU/MP/0005/1982
Print PageQuestion 1
Explain
the current status of the Bombay High Court’s stay order on transferring
adoption cases from courts to District Magistrates. How does it impact the
jurisdiction of District Judges?
Question 2
What is
the scope of jurisdiction of the District Judge under the Hindu Adoption and
Maintenance Act, 1956 (HAMA) for adoption within Hindu families?
Question 3
Under
HAMA, when is court permission mandatory for adoption? Cite relevant sections.
·
Both
parents are dead, or
·
Both
parents have renounced the world, or
·
Both
parents have abandoned the child, or
·
Both
parents have been declared of unsound mind by a competent court, or
Question 4
What role
does the Central Adoption Resource Authority (CARA) play in adoption
proceedings, and when is its permission required?
Question 5
Compare
the procedural and jurisdictional differences between adoption under HAMA and
the Juvenile Justice (Care and Protection of Children) Act, 2015.
Answer:
·
HAMA: Minimal court intervention limited to specified cases, no
CARA involvement for family adoptions, focuses on Hindu families and
traditional adoptions, registered adoption deed often sufficient.
·
Juvenile Justice Act: Mandatory court adoption orders for
all institutional adoptions, CARA regulation compulsory, applies to all
religions, strong institutional oversight.
Question 6
Discuss
the difference between adoption orders under the Juvenile Justice Act and
adoption deeds under HAMA.
Question 7
Distinguish
institutional adoption and interse family adoption with reference to legal
framework and procedure.
Answer:
·
Institutional adoption: Involves orphaned or abandoned
children, processed through CARA-regulated agencies and requires court orders
under the Juvenile Justice Act.
·
Interse family adoption: Adoption between relatives under HAMA
without mandatory CARA involvement or court orders in normal cases, emphasizing
family autonomy.
Question 8
Which
statute governs the adoption of a brother’s child in a Hindu family and why?
Question 9
Explain
the principle of harmonious construction regarding HAMA and the Juvenile
Justice Act adopted by courts.
Question 10
What
procedural challenges arise from the Juvenile Justice Act amendments and Bombay
High Court’s judicial intervention?
Question 11
As a
District Judge, how would you adjudicate an adoption petition of a relative’s
child under HAMA? What documentation is required?
Question 12
How does
the Juvenile Justice Act extend adoption rights beyond religious boundaries
compared to HAMA?
Question 13
Define the age limits for adoptable children under HAMA and the Juvenile Justice Act and explain the differences.
How would you maintain procedural consistency and child welfare standards when handling adoption cases under both HAMA and the Juvenile Justice Act?
Detailed description and valuation of the property.
Reasons for the sale (e.g., necessity, financial hardship, or evident advantage to the minor).
Conclusion:
26. In the light of aforesaid discussion, we find that after an award attains finality and the stage as contemplated by provisions of Section 34 of the Act of 1996 has been crossed, the final arbitral award under Part-I of the Act of 1996 has to be enforced in accordance with the provisions of the Code in the same manner as if it were a decree of the Court. The legal fiction under Section 36 is only for the limited purpose of enforcement of an award as a decree. At that stage, the provisions of Sections 38 and 39 of the Code would come into operation. These provisions permit a decree to be executed either by the Court which passed it [the Court as defined by Section 2(1)(e)(i) of the Act of 1996] or by the Court to which it is sent for execution. The Court which passed the decree can also transfer it for execution to any subordinate Court of competent jurisdiction. Proceedings for execution of an arbitral award are beyond the purview of Section 42 of the Act of 1996, inasmuch as such proceedings are not in the nature of any application under Part-I of the Act of 1996. The view as taken by the Division Bench in Akola Janta Commercial Co-operative Bank Ltd. [supra] that a decree holder must apply for execution of an award to the Court of District Judge who may thereafter execute the award as a decree himself or send it for execution to another Court including a subordinate Court of competent jurisdiction commends itself and we respectfully concur with the same. The modality prescribed therein that all applications for execution of awards be first placed before the District Judge who may then execute the same himself or send it to subordinate Courts under Section 38 read with Section 39(2) of the Code is found appropriate in these circumstances.
27. We are, therefore, in respectful disagreement with the views expressed in the order of Reference in Gemini Bay Transcription Pvt. Ltd. [supra] that a Court subordinate to the Court of District Judge [here the Court of Principal District Judge] cannot be recognized as a Court of competent jurisdiction for the purposes of enforcement of awards under the Act of 1996. The view taken by learned Single Judge in Arunkumar Deedwania [supra] stands affirmed and the view taken in Sanjay Suryakant Mhaske & others [supra] with respect stands overruled.
30. The Reference accordingly stands answered as follows:-
An Award made under Part-I of the Arbitration and Conciliation Act, 1996 can be executed not only by the Court as defined by Section 2(1)(e)(i) but also by the Court to which it is sent for execution under Sections 38 and 39 of the Code of Civil Procedure, 1908.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition Nos. 6066 and 4682 of 2012
Decided On: 16.02.2018
Gemini Bay Transcription Private Ltd. and Ors. Vs. Integrated Sales Service Ltd. and Ors.
Hon'ble Judges/Coram:
R.K. Deshpande, A.S. Chandurkar and M.G. Giratkar, JJ.
Author: A.S. Chandurkar, J.
Citation: MANU/MH/0265/2018, AIR 2018 BOMBAY 89, (2018) 2 MAH LJ 329.
Print PageTo sum up, as an upshot of the above discussion, M/s. Sarin Construction Company, Raipur (MANU/CG/0051/2005 : AIR 2006 Chh 412) (supra) based on Section 42 of the Act, 1996 and the judgment of Allahabad High Court in M/s. I.T.I. Ltd. Allahabad (MANU/UP/0549/1998 : AIR 1998 All 313) (supra) sailed on the reasoning that the Principal Civil Court of Original Jurisdiction i.e. the Court of District Judge alone has jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement, however, the judgments rendered by the different High Courts in preceding paragraphs and the decision of the Supreme Court in Sundaram Finance Limited represented by J. Thilak, Senior Manager (Legal) (MANU/SC/0122/2018 : AIR 2018 SC 965) (supra) would categorically pronounce that the word 'Court' defined in 2 (1)(e) not only includes the Principal Civil Court of Original Jurisdiction i.e. Court of Principal District Judge or District Judge(s), but also includes the Court of Additional District Judge(s), therefore, any application filed under any provision of the Act, 1996 before the Court after passing of the award, including applications under Section 34 or 36 of the Act, 1996, can be heard and decided not only by the District Judge(s), but also by the Court of Additional District Judge(s), upon being made over by the District Judge by a general or special order. In respect of application with regard to an arbitration agreement where the award is yet to be passed, such application may be moved before the District Judge and can be made over to the Court of Additional District Judge by general or special order but in such eventuality any subsequent application till passing of award is to be decided by the same Court, which has dealt with the earlier application, by virtue of Section 42 of the Act, 1996. {Para 43}
IN THE HIGH COURT OF CHHATTISGARH
W.P. Nos. 227 and 299 of 2018
Decided On: 12.10.2018
A Suo Motu Taken Writ Petition Vs. State of Chhattisgarh
Hon'ble Judges/Coram:
Prashant Kumar Mishra, Manindra Mohan Shrivastava and Ram Prasanna Sharma, JJ.
Author: Prashant Kumar Mishra, J.
Citation: MANU/CG/0529/2018.
Print PageIn view of the above, now it is settled that it is the
interest of the children that needs to be considered. Mere desire
of a child at a tender age is not a sole factor to be considered for
taking decision in respect of the custody. The child at the tender
age is not fully aware of his welfare. There is always tendency to
be with parent with whom they are residing. They are mostly
influenced by tutoring by the parents. Interaction with child is
thus influenced by such parents. In the present case also, this
court interacted with the children. The children naturally stated
that they are happy with the father. However, it must be
considered that presently children are in custody of the father
and as expected, answer has come in favour of the father.
{Para 12}
13. So far as better company and care is concerned, it is
seen that almost every member in the family of the husband is
occupied in the business. There is only grand-mother of the
children who is in the house for whole day. In the house of the
wife, she is always at home. She stays with her parents. There
are other relatives in the family. So far as deprivation of the
company is concerned, it needs to be noted that both the parties
are staying in the same town. Distance between the houses of
husband and wife is not more than 2 km. Thus, visitation by
parent would not be much difficult. Husband can always meet
children at convenient place. Husband and wife are related to
each other even prior to marriage. One more factor needs to be
considered is that there is one female child who is staying with
mother. If all the siblings stay together it would help children in
growing together. Being female child she requires care and
attention of the mother. Under Muslim Law, custody of the
children below 7 years is required to be with the wife.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1708 OF 2024 WITH CA/7330/2024 IN FA/1708/2024
Mukhtar S/o. Yunus Sayyad, Vs Habiba W/o. Mukhtar Sayyad,
CORAM : KISHORE C. SANT, J.
PRONOUNCED ON : 28th AUGUST, 2024
Print PageNo doubt that the judgments are evaluated and interviews are
conducted by the Hon'ble Judges of this Court. As such, the
assessment of the judgments of the candidate as well as assessment of the performance of the candidate in vivavoce would be presumed to be on objective basis. However, by now, it is a settled principle of law that merely because there is no possibility of discretion being not
exercised properly, that by itself cannot be a ground for granting wider
discretion howsoever high the authority may be. We may also
gainfully refer to the Judgment of the Apex Court in Ajay Hasia vs.
Khalid MujibAIR 1981 SC 487. In the said case, selection process included 33.33
percentage marks for oral interview. Their Lordships held that
allocation of a high percentage of marks for the oral interview as
compared to the marks allocated for the written test, cannot be
accepted by the Court as free from the vice of arbitrariness. After
discussing the entire legal position, Their Lordships observed that
allocation of more than 15% of the marks out of the total marks for
the oral interview would be arbitrary and unreasonable and was liable
to be struck down as constitutionally invalid. In the Rules that fall for
consideration before us more than twice permissible limit of 15% i.e.
33.33% of the marks are allocated on the basis of oral interview. Not
only that even 33.33 % of the marks which are to be allocated on the
basis of evaluation of the judgment are also on the basis of subjective
evaluation which may differ from a judge to judge.{Para 12}
13] We are therefore of the prima facie view that award of only
33% of marks on the basis of objective assessment and 66.66 % of
marks on the basis of subjective assessment i.e. evaluation of
judgments and oral viva appears to be an issue which needs to be
looked into.
14] We may clarify that we do not propose to encroach upon the rule
making powers of the High Court on the Administrative Side.
However, as already discussed hereinabove, we may also observe that it is high time that the Rules which govern the promotions of high office of District Judge need to be reframed in a proper format. We may also prima facie observe that the selection process for the
promotion should not have more than 50% of the marks to be
determined on the basis of subjective assessment i.e. evaluation of
judgment and granting of marks for vivavoce. We therefore feel that
rule making authority i.e. High Court on the Administrative Side will
address the issue and find out a system of selection which has more
weightage on the objective assessment than the subjective assessment
of the candidate.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1440 OF 2017
Surekha Abhay Sinha V/s State of Maharashtra
Mr. Ravi Gadagkar a/w Mr. Aniket Ransubhe i/b Mr. Ajay Basutkar for the Petitioner.
Mr. Himanshu Takke, Asstt. Govt. Pleader for Respondent Nos. 1 and
Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Rahul Nerlekar for Respondent No.3.
CORAM: B. R. GAVAI & M.S. KARNIK, JJ.
DATE: 4th September, 2017
Print Page
“The challenge in the present writ application is to the communication, dated 16th of February, 2016, whereby representation of the petitioners to appear in interview for the post of District Judge Entry Level (Direct from Bar) Examination, 2015, was rejected and a condition was imposed that petitioners will have to tender their rejection, first, from the Subordinate Judicial Service of the State of Bihar and only, thereafter,they could appear in the interview.For the above-mentioned reasons, the Appeal is allowed. Consequently, the Writ Petition (CWJC No. 3504 of 2016) filed by the appellants also stands allowed directing the respondents to permit the appellants to participate in the selection process without insisting upon their resigning from their current employment. If the appellants are found suitable, it is open to the appellants to resign their current employment and opt for the post of District Judge, if they so choose.REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7358 OF 2016 (Arising out of SLP (C) No. 17466 of 2016) Vijay Kumar Mishra and Another … Appellants Versus High Court of Judicature at Patna and Others … Respondents Dated:August 9, 2016Chelameswar, J. Citation:(2016) 9 SCC313,2017(2) MHLJ 9 SC
