CHHATTISGARH HC (FB) : Additional district Judge can entertain application U/S 34 of arbitration Act

To 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.

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Whether High court can entertain the matrimonial matter as the court of Original Jurisdiction at Mumbai if it comes within the family court's jurisdiction?

 The plea with regard to the Family Court is raised on the basis of the provisions of section 2(e) along with section 8 of the said Act. Exclusion of jurisdiction of the Civil Court will also have to be considered. Section 2(e) reads as under:

"2(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code."

Relevant portion of section 8 reads as under :

"8. Exclusion of jurisdiction and pending proceedings.---

(a) no District Court or any Subordinate Civil Court referred to in subsection (7) shall in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;"

5. Reference to District Court or any Subordinate Civil Court may in the aforesaid portion of the said section 8 will therefore have to be understood with reference to the Code of Civil Procedure. Section 2(4) of the Code reads as under:

"2(4) district means the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court."

28. Virtually, the litigation before the Family Court is a mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial.

As the Family Court is left to devise its own practice, it can have a judicious mixture of all three of them and can as well proceed under any of- them exclusively.

29. The anomaly would thus be obvious. The Ordinary Original Civil Jurisdiction is held to be retained as per the learned Judges of the Division Bench and the learned Judges of the Full Bench of the Madras High Court. The procedure will be in accordance with the respective rules of the High Court on its Original Side. When legal representation being a certainty with all trapping of a full-fledged trial and the Evidence Act, 1872 will apply with force and rigour.

30. The litigants deciding to litigate within the limits of the City of Mumbai will thus continue to operate under the existing system. The litigants other than that litigating with new system will have the benefit of the aforesaid Family Courts Act which with reference to the aforesaid changes brought about in the conduct of the matters before the Family Court is clearly radical departure from the accepted form of a trial of a Civil Court. If the legislature in its wisdom has decided to make this departure while interpreting any provision of it, in our opinion, the interpretation should be in furtherance of the objective.

31. When thus interpreted, in our opinion, the conclusion would be inescapable that when the High Court exercises its Ordinary Original Civil Jurisdiction in relation to the matters under the Family Court Act, it would be a District Court as understood therein. It would, therefore, lose its jurisdiction. The reference is answered accordingly.

Bombay High Court

Romila Jaidev Shroff vs Jaidev Rajnikant Shroff on 5 May, 2000

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Whether writ of Habeas Corpus will be maintainable against Judicial order or Child Welfare Committee’s order under J.J. Act?

 Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest is paramount and before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in mind. The wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.{Para 78}

79. Thus, it is evident that a writ of habeas corpus would not be mintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus.

80. We accordingly come on our conclusions in respect of question nos. 1, 2 and 3 for determination as follows:—

Question No. 1:“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

Answer : If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Question No. 2:“Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?”

Answer : An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention.

Question No. 3:“Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes is legally valid or it requires a modified approach in consonance with the object of the Act?”

Answer : Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

81. Thus, all the three issues referred for determination are answered, accordingly. 

In the High Court of Allahabad

(Before Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ.)

Rachna and Another  Vs State of U.P.

Habeas Corpus Writ Petition No. 362 of 2020

Decided on March 8, 2021,

Citation: 2021 SCC OnLine All 211

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Whether there is the limitation for claiming property by wife entrusted to husband?

 The question involved in the above reference is that,

when there is a change in circumstances between the spouses,

especially when there is a dissolution of marriage and substantial

time had elapsed, whether the trust created between them would

be extinguished.

6. It is settled law when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force. When S.10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation. The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke S.10 of the Limitation Act and file a suit at her will and pleasure at any point in time. 

9. As per S.6 of the Dowry Prohibition Act, 1961, when a

statutory trust is created in respect of dowry, the principle

aforestated shall apply.

10. In the case of ornaments which are given in the form of

dowry, definitely, a statutory trust is created. Even otherwise, if

the ornaments owned by the wife do not form part of the dowry

and if there is an entrustment of gold ornaments by the wife to

the husband or his parents, a trust gets created, in which event,

the trustee or trustees, as the case may be, are liable to return

the same and there is no limitation for claiming the same by the

wife/divorced wife.

In the light of the aforesaid discussion, we are in full

agreement with the law laid down in Chacko's case (supra) and

we uphold the view expressed in Bindu K.P.'s case (supra). 

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR.JUSTICE A.M.SHAFFIQUE

 MR. JUSTICE SUNIL THOMAS

and

 MR. JUSTICE GOPINATH P.

Mat.Appeal.No.358 OF 2019

SHEELA.K.K., Vs  N.G.SURESH,

Author: Shaffique, J.

Dated:  24TH DAY OF SEPTEMBER 2020

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Whether court can convict accused U/S 302 of IPC if he was charged under S 302 of IPC read with S 149 of IPC along with other accused?

Admittedly, none of the accused persons individually had been charged for the substantive offence of murder under Section 302 IPC. In the trial court all the six accused were charge sheeted for an offence under Section 302 read with Section 149 IPC. Other charges were also framed against the accused but only with the aid of Section 149 IPC. After the acquittal of the two accused, could the High Court convict appellant No. 1 for the substantive offence under Section 302 IPC (with which he had not been charged) and the appellants 2 to 4 for an offence under Section 326/149 IPC?

9. Section 141 IPC defines an unlawful assembly to be an assembly of five or more persons, where the common object of the persons comprising that assembly is to commit any of the acts enumerated in the five clauses of that Section. Section 149 IPC reads as under:

Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

10. A combined reading of Section 141 and Section 149 IPC (supra) show that an assembly of less than five members is not unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not ah unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also.

11. Since, appellant No. 1 Subran had not been charged for the substantive offence of murder under Section 302 IPC, even the trial court, which tried the six accused persons, court was not justified in recording a conviction against him for the substantive offence of murder punishable under Section 302 IPC after framing a charge against him for the offence under Section 302 read with Section 149 IPC read with Section 149 cannot be convicted of the substantive offence under Section 302, IPC only. A person charged for an offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC. Appellant No. 1, Subran, was never called upon to meet a charge under Section 302 IPC simplicitor and, therefore, in defending himself, he can not be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. therefore, the conviction of the first appellant for an offence under Section 302 was not permissible. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 237 of 1993 

Decided On: 24.02.1993

 Subran  Vs. State of Kerala

Hon'ble Judges/Coram:

M.N. Venkatachaliah, C.J., B.P. Jeevan Reddy and Dr. A.S. Anand, JJ.

 Citation : 1993 CriLJ 1387, MANU/SC/0546/1993,(1993) 3 SCC 32.

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Why must a magistrate record evidence of the complainant and his witnesses in session triable complaint case?

 The prosecution in the Court of Session is to be opened under Section 226 by the Public Prosecutor describing the charge and stating by what evidence he proposes to prove the guilt of the accused. In a complaint case if process is issued on the opinion that there is sufficient ground for proceeding there is no other option for the Magistrate but to commit the accused to the Court of Session, If process is issued after compliance with Section 200 alone without conducting an enquiry under Section 203, the issue of process and committal may very often be on the basis of the allegations in the complaint and the sworn statement of the complainant alone. The list of witnesses filed by the complainant may not reveal the version which the witnesses are going to say in court. It may also happen that the complainant examined under Section 200 does not have direct knowledge regarding some or many of the aspects of the offence. Under Section 227 the Sessions Judge has to consider the record of the case and documents submitted therewith and he can discharge the accused if he considers that there is no sufficient ground for proceeding. In the contingencies mentioned above, perhaps, the Sessions Judge has no other alternative than to discharge the accused due to total paucity of materials." It is thus necessary that there must be sufficient materials for the Public Prosecutor to open the case and state by what evidence he proposes to prove the guilt of the accused. Otherwise the complainant will be exposed to the risk of the accused being easily discharged under Section 227 even in a genuine case for want of sufficient materials in the absence of an enquiry under Section 202.

23. The accused also will be at a disadvantage. In a police charge case there is the assurance of investigation by an official agency which may filter the materials. Under Section 207, in such a case the Magistrate, before committal, has to furnish the records mentioned therein to the accused. The object is to facilitate the accused to prepare his defence on the materials by which the prosecution seeks to prove the case against him. In a complaint case, in the absence of investigation, documents mentioned in Section 207 cannot be made available to the accused because there would be no such documents. Section 208 which provides for supply of documents in a complaint case will have to be viewed in this background. The documents to be supplied under Section 208(1) are statements of witnesses recorded under Section 200 or Section 202 of all the persons examined by the Magistrate. In Sulaiman's case 1978 Ker LT 424 the Division Bench considered Sections 200, 202 and 208(1) and held:

"The provision in Section 208(1) regarding the furnishing of copies of statements is one made not cumulatively but alternatively. It says copies to be furnished should be of statements under Section 200 or Section 202. Use of the word 'or' there, is important. It is used there disjunctively and not conjunctively. When so read it produces an intelligible result. It then means that the accused should be furnished with, copies of the statements of persons recorded under Section 200 or Section 202 as the case may be. Section 208(1) does not contemplate an accused being furnished with copies of statements recorded under S, 202 when the commitment is made based on the statements taken under Section 200 alone."

24. Considering the object and purpose of the amended provision in Section 202, we do not think that interpretation placed by the Division Bench in Sulaiman's case (1978 KLT 424) is correct. The word "or" cannot be given that restricted meaning, as we have already pointed out. The object of the provisions in Section 202 when taken along with Sections 208 and 209 is to place the accused in a complaint case in the same advantageous position as the accused in a police charge case.

25. In a complaint case the enquiry under Section 202 by the Magistrate into the truth of the complaint is made mandatory and in a way it is intended to take the place of investigation by the police. This safeguard must be to take the place of the preliminary enquiry proceedings provided in the old Code. On the strength of the aforesaid reasonings, we find considerable force in the contention of the counsel for the petitioners that Sub-section (2) together with the proviso must be read as a proviso to Section 202(i). When it is so read, the objects underlying the scheme of Chapter XV can be better served.

26. As a result of the foregoing discussion we are forced to conclude that the legislature contemplated two types of enquiries under Section 202 and in the mandatory enquiry under Section 202 in a complaint case the Magistrate himself will have to conduct the enquiry and he will have to call upon the complainant to produce all his witnesses and examine them on oath.

27. Our conclusion is, which we say with respect, that the decisions in Kochu Mohammed v. State of Kerala MANU/KE/0138/1977, P. Section Sulaiman v. Eachara Warrier 1978 Ker LT 424 and Sidhan v. State of Kerala MANU/KE/0135/1985 have not laid down the law in this respect correctly.

IN THE HIGH COURT OF KERALA

FULL BENCH

Crl. M.C. Nos. 974 of 1984 and 17 of 1985

Decided On: 20.03.1987

 Moideenkutty Haji  Vs Kunhikoya and Ors.

Hon'ble Judges/Coram:

S. Padmanabhan, K.T. Thomas and K.G. Balakrishnan, JJ.

 Citations: AIR 1987 Ker 184,MANU/KE/0045/1987

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Bombay HC: Basic principles for ascertaining precedential value of a decision

 It is the ratio understood in its correct perspective that is made applicable to a subsequent case on strength of a binding precedent. Ratio decidendi is thus the reason for deciding as reasoning is the soul of decision making process. Every settled principle of law has to be rationally understood with reference to the facts of the case in which such principle of law is stated. In other words, facts make the law and this should always be kept in mind while applying the principles stated and reasoning in support thereof. A little difference in the facts or additional facts may make a lot of difference in the precedential value of a decision.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal No. 315 of 2003

Decided On: 10.06.2009

Rajeshwar  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Swatanter Kumar, C.J., A.P. Lavande and V.A. Naik, JJ.

Citation: 2009 ( 4 ) MhLj 483,2009 CriLJ 3816, MANU/MH/0446/2009

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Whether provisions of S 35-B of CPC in respect of costs for causing delay are mandatory?

The facts of the case are given in the elaborate order of reference prepared by my learned brother P.C. Jain, J., and I need hot repeat them all over again. The short question, which this Full Bench is called upon to decide is whether the provisions of section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code) are mandatory, fend if so, to what extent.

 In accordance with the majority decision it is held that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 1878 of 1978

Decided On: 03.06.1981

Anand Parkash  Vs.  Bharat Bhushan Rai and Ors.

Hon'ble Judges/Coram:

S.S. Sandhawalia, C.J., Prem Chand Jain and Mela Ram Sharma, JJ.

Authored By : Mela Ram Sharma, Prem Chand Jain, S.S. Sandhawalia

Citation: AIR 1981 P&H 269

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When defendant is not entitled to claim temporary injunction without filing counter claim?

The Division Bench, relying on the judgment of the Apex Court in Manoharlal Chopra's case (cited supra), held that the defendant can maintain an application under Order XXXIX, Rule 1 and 2 for an injunction against the plaintiff by making a distinction between a suit for partition and separate possession and a suit for bare injunction and the judgment in Suganda Bai's case was held to be in conformity with the view taken in Manoharlal Chopra's case. In both the judgments, the difference in the language employed in Rule 1(a) and Rules 1(b) and (c) is not noticed. Therefore, we are of the view that, when the statute prescribes a particular procedure set out in a provision in which the word "cause of action" is conspicuously missing, it is not possible to hold that a defendant can maintain an application for injunction if it is based on the same cause of action as that of the plaintiff or incidental thereto and further that, such an application cannot be maintained if the cause of action for the defendant arises subsequent to the cause of action the plaintiff has pleaded. We do not find any support to such a proposition of law as is laid down in the above two judgments and therefore, we over rule the same.

The correct legal position as is clear from the statutory provision is as under:

(i) Both the plaintiff and the defendant can maintain an application under Order XXXIX, Rule 1(a) of the Code for the reliefs set out in the said provision;

(ii) Insofar as relief under Order XXXIX, Rule 1(b) and (c) is concerned, such a relief is available only to the plaintiff and the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit.

However it is open to the defendant to maintain a separate suit against the plaintiff and seek relief provided under Order 39, Rule 1(b) and (c) of the Code.

(iii) In cases which do not fall under Order XXXIX, Rule 1 of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the Court and nothing in this Code shall limit or otherwise affect such inherent power of the Court.

Accordingly, we answer the question of law referred to for our consideration in the negative.

IN THE HIGH COURT OF KARNATAKA

Writ Petition Nos. 58906 of 2013 and 16412 of 2014 (GM-CPC)

Decided On: 05.09.2014

Shakunthalamma  Vs.  Kanthamma

Hon'ble Judges/Coram:

N. Kumar, B.S. Patil and Rathnakala, JJ.

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Kerala HC: Criteria to determine whether will was conditional or contingent

12. We can now deduce the following rules on the subject.

(1) A conditional or contingent will is one which depends for its operation upon the happening of a specified condition or contingency. If the condition fails, the will is inoperative and void thereafter.

(2) Whether or not a will is to be regarded as contingent depends upon the intention of the testator. Courts will not regard a will as conditional or contingent unless the intention of the testator to make it so clearly appears either expressly or by necessary implication from the language of the will as a whole.

(3) A will is not made conditional by statements therein which have no reasonable or logical relation to the testator's property or to the objects of his bounty.

(4) A statement in the will of circumstances which merely indicate the necessity or serve as the occasion or inducement for making the will will not render it contingent.

(5) Where it is doubtful whether the will is contingent upon the occurrence of an event the circumstances under which the will was executed or the language of the instrument may be considered.

IN THE HIGH COURT OF KERALA

FULL BENCH

A.S. Nos. 118 and 119 of 1953

Decided On: 27.01.1959

 Sridevi Amma  Vs.  Venkitaparasurama Ayyan and Ors.

Hon'ble Judges/Coram:

K.T. Koshi, C.J., M.S. Menon and N. Varadaraja Iyengar, JJ.

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Bombay HC: Writ petition for issuance of writ of certiorari against order of Judicial/Civil Courtis not maintainable

 We are bound by the view taken by the Constitution Bench decision of the Apex Court in the case of Muhhamad Emanual and a three-Judge Bench decision in the case of Savitri Devi, cited supra. We, therefore, hold that in the proceedings under Article 227 of the Constitution of India, neither the Judicial/Civil Court nor the Presiding Officer over it, whose order is challenged, can be a necessary party and, therefore, in the absence of such party, a petition or an application cannot be dismissed as not maintainable. The question of law at Serial No. (3) is answered accordingly. We, however, clarify that there may be an exception where there are allegations of mala fides, partiality, bias, etc., where a Presiding Officer is required to be joined personally as party respondent so as to provide him an opportunity to meet the allegations, in such a case, a petition or an application under Article 227 of the Constitution of India will have to be dismissed as not maintainable, if the order is to be set aside on any such ground.

We summarize our conclusions as under:

(1) A writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari to quash and set aside the order passed by the Judicial/Civil Court, subordinate to the High Court, is not maintainable.

(2) In view of the aforesaid conclusion, the question as to whether the Judicial/Civil Court or its Presiding Officer becomes a necessary party and in its absence a writ petition under Article 226 is maintainable or not, does not survive.

(3) A petition or an application under Article 227 of the Constitution of India challenging the order passed by the Judicial/Civil Court, subordinate to the High Court, cannot be dismissed as not maintainable in the absence of such Court or its Presiding Officer being impleaded as a party respondent, subject to the exception carved out in the judgment.

(4) In view of the decision of the Apex Court in the case of Jogendrasinhji, the decision of the Full Bench of this Court in the case of Ramchandra Dagoji Rangari, holding that the petition for issuance of a writ of certiorari under Article 226 of the Constitution of India, would not be maintainable without impleading the tribunal or the authority, whose order is assailed before the High Court, as a party respondent, no longer remains a good law, subject to the exception carved out in the judgment.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 177 of 2012 in Writ Petition No. 1424 of 2012, 

Decided On: 21.11.2019

 Motilal  Vs.  Balkrushna Baliram Lokhande 

Hon'ble Judges/Coram:

R.K. Deshpande, A.S. Chandurkar and Milind Narendra Jadhav, JJ.

Citation: AIR 2020 Bombay 39(FB)

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What remedy is available against consent decree to an aggrieved third party?

Still there could be one more situation, where the third party who was not the party to suit or the party to the compromise but had an interest in the subject matter of the compromise, is aggrieved by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit. So what remedy would be available to him? It cannot be gainsaid that the decree based on the compromise between the parties under Order XXIII, Rule 3, if remains unchallenged would be a "consent decree" binding to the parties to suit. However, when the person aggrieved is third party who was neither a party to the suit nor a party to the compromise on the basis of which the decree was passed by the Court in the suit, would not be bound by such decree. Such a decree could not be said to be a "consent decree" qua such third party, and therefore, neither the bar contained in Section 96(3) nor the bar under Rule 3A of Order XXIII would be application to him. Such an aggrieved party, with the leave of the Court can always file an appeal under Section 96(1) against the decree passed by the Court on the basis of the compromise, and can contest the decree on the ground that the compromise should, or should not have been recorded by the Court in view of Rule 1A(2) of Order XLIII of CPC. When the third party is vitally and adversely affected by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit on the subject matter or otherwise of the suit, he can certainly, with the leave of the appellate Court, prefer an appeal and can contest such a decree passed under Order XXIII, Rule 3. One of the grounds to contest the decree could be that such a compromise should or should not have been recorded by the Court.

31. At this juncture, the word "party" used in Sub-rule (1) and the word "appellant" used in Sub-rule (2) of Rule 1A of Order XLIII assume importance. The Sub-rule (1) of Rule 1A relates to the order passed against the 'party' to the suit, and the appeal filed by 'such party', whereas the Sub-Rule (2) of the said Rule 1A relates to the appeal filed by the 'appellant'. Such appellant may or may not be a party to the suit. The Sub-rule (2) is not confined to the appeal filed by the "party" to the suit. Hence, the third party, in the appeal against the decree passed in the suit under Rule 3 of Order XXIII can also contest such decree on the ground that such a compromise should not have been recorded.

32. In the opinion of the Court, such an aggrieved third party would also have an option to file an application for Review of the order recording the compromise or for Review of the decree based on the compromise between the parties to the suit, under Section 114 read with Order XLVII, Rule 1 of CPC, if the conditions precedent mentioned therein are satisfied. It has been held by the Supreme Court in case of Board of Control for Cricket, India Vs. Netaji Cricket Club, reported in MANU/SC/0019/2005 : AIR 2005 SC 592, that an application for Review under Order XLVII Rule 1 would be maintainable not only upon discovery of a new and important piece of evidence, or when there exists an error apparent on the face of record but also if the same is necessary on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend upon facts and circumstances of each case. The words "sufficient reason" in Order XLVII, Rule 1 are wide enough to include a misconception of fact or law by a Court or by an advocate. An application for review may be necessitated by way of invoking he doctrine "actus curiae neminem gravabit", which means that the act of the Court shall prejudice no one. Therefore, it any person considers himself aggrieved by the order or decree passed under Order XXIII, Rule 3 may for sufficient reason apply for review of such decree or order under Order XLVII, Rule 1, subject to the conditions mentioned therein. When an application for review is granted, the Court may at once re-hear the case or make such order in regard to the rehearing as it thinks fit, as contemplated in Rule 8 of Order XLVII of CPC.

 If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Appeal from Order No. 33 of 2017,

Decided On: 28.08.2019

 Sakina Sultanali Sunesara (Momin) Vs.  Shia Imami Ismaili Momin Jamat Samaj 

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Whether the court can restore suit dismissed in default in the exercise of inherent powers?

Overruling the view taken by the learned Single Judge of this Court and answering the reference by declaring that Section 151 of the Code could be invoked to seek restoration of a Suit dismissed under Sub-Rule (1) of Rule 5 of Order IX of the Code, we lodge the caveat. The caveat would be that the Plaintiff would have to show a sufficient cause. The previous conduct of the Plaintiff would also require to be considered. The inconvenience and the prejudice caused to the served defendants or the defendant who was not served as a consequence of restoration of the Suit would also have to be kept in mind.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 896 of 2007, 7552 of 2009 and Civil Application Stamp No. 901 of 2019

Decided On: 16.10.2019

Hariba Tatyaba More  Vs.  Dada Ekhatnath More and Ors.

Hon'ble Judges/Coram:

Pradeep Nandrajog, C.J., M.S. Karnik and Bharati H. Dangre, JJ.

Citation: 2019(6) MHLJ 511(FB)

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Leading Bombay HC judgment for determination of forum of appeal in suit for eviction and mesne profits

Tenancy - eviction - Sections 2 and 15 Order 6 Rule 17, Order 7, Order 20 Rules 12 (1) and 12 (2) (as applicable to Maharashtra) of Code of Civil Procedure, 1908 - suit for arrears of rent and mesne profits - decree for possession passed with direction for mesne profits - enquiry conducted under Order 20 Rule 12 for determination of mesne profits - appellant contended that forum of appeal would be determined as per final outcome of enquiry under Order 20 Rule 12 - contention of petitioner rejected - forum of appeal is determined with reference to value of suit and not amount decreed - held, forum of appeal to be determined as per valuation put by plaintiff when suit was filed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 397 of 1993 arising out of decree dated 15-7-1993 in Mesne Profit Case No. 7 of 1986

Decided On: 30.11.1998

Syed Saifuddin Vs.  Kasturchand Abhayrajji Golchha

Hon'ble Judges/Coram:

N.J. Pandya, J.N. Patel and A.B. Palkar, JJ.

Citation: 1999 ( 2 ) MhLJ 675,2000(4) B. C.R 582

N.J. Pandya, J.

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Bombay High court(FB) : Second wife not entitled to get pension

 The matter is placed before this Full Bench upon the directions of the Hon'ble the Chief Justice. The reference was made by the Division Bench of this Court referring the following issue to the full bench, "In cases to which, Maharashtra Civil Services (Pension) Rules, 1982, apply whether the second wife is entitled to claim family pension?"

Kamalbai and Ors. vs. The State of Maharashtra and Ors. (31.01.2019 - BOMHC) : MANU/MH/0776/2019 The view taken by the Division Bench of this Court in a case of Chanda Hinglas Bharti Vs. State of Maharashtra (supra) and Ramabai Gulabrao Jamnik Vs. State of Maharashtra (supra) so also the view of the learned Single in a case of Indubai Jaydeo Pawar and another Vs. Draupada @ Draupadi Jaydeo Pawar and others (supra) appears to be correct view. 

 The Three Judges Bench of the Apex Court in a case of Raj Kumari and another Vs. Krishna and others reported in MANU/SC/0397/2015 : (2015) 14 SCC 511 has also observed that normally pension is given to the legally wedded wife of a deceased employee. Same view is taken by the Apex Court in a case of Rameshwari Devi Vs. State of Bihar (supra) and it is held that the second wife is not entitled for family pension.

26. In view of the aforesaid discussion, we answer the reference as under:

"In cases to which Maharashtra Civil Services (Pension) Rules, 1982 apply, the family pension can be claimed by a widow, who was legally wedded wife of the deceased employee. Second wife, if not a legally wedded wife would not be entitled for family pension and if the second wife is legally wedded wife, then should be entitled for the family pension."

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 9933, 11256 and 12308 of 2016

Decided On: 31.01.2019

 Kamalbai  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala, R.V. Ghuge and S.M. Gavhane, JJ.

Citation: 2019(3) MHLJ 921

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Whether insurer is bound to prove conclusively that intimation of cancellation of policy reached to insured prior to accident

 A period of one week from the date of dispatch can safely be adopted as the time necessary to serve the letter in the ordinary course after which the intimation is presumed to have been served on the addressee. The period is so fixed in the absence of any provision to the contrary for the limited purpose of the cases of this nature to avoid disputes as to the date of receipt of the intimation. The insured in some cases may try to evade the service of notice and the letter would be returned with postal remarks like 'addressee left', 'house locked', 'insufficient address' etc. The burden is on the addressee to rebut the presumption by conclusive evidence that he did not really receive the letter and it is not a case of deliberate avoidance. The burden is not on the insurer to establish conclusively that the intimation of cancellation of insurance coverage was in fact served on the insured or the registering authority. The judgment in M.A.C.A. No. 2471/2015 to the effect that it is the obligation of the insurer to establish the service of the intimation on the addressee is hereby overruled. Needless to say that no liability can be fastened on the insurer for any compensation payable in respect of an accident that occurs after the service of the intimation aforesaid.

IN THE HIGH COURT OF KERALA

M.A.C.A. No. 2017 of 2013

Decided On: 31.10.2018

 Prasanna  Vs.  Kabeer

Hon'ble Judges/Coram:

V. Chitambaresh, P.B. Suresh Kumar and Sathish Ninan, JJ.

Citation: AIR 2019 Kerala 82

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Leading judgment on exhibition of documents

 The question presented in these cases require us to resolve two conflicting lines of precedents on the one hand, as the Court stress that "it is necessary for Court to decide about admissibility of documents before they are exhibited in evidence". On the other, some of the learned Judges of this Court have no less categorically said that admissibility of evidence and proof of document should be reserved until judgment in the case is given.

In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:

Answer to Question-A :

--------------------

As already noticed, (i) objection to the document sought to be produced relating to

the deficiency of stamp duty must be taken

when the document is tendered in evidence and such objection must be judicially 

determined before it is marked as exhibit;

(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;

(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final

judgment in the case.

The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent 

miscarriage of justice and expedite trial, which is the dire need of the time.

Answer to Question-B :

--------------------

The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (supra).

Bombay High Court

Mr.Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008

Bench: V.C. Daga, P.V. Kakade

CORAM: SWANTANTER KUMAR, C.J.

V.C.DAGA, J. AND

V.M.KANADE, J.

DATED: 16th October 2008.

Citation;2008 (6)MH L J (FB)886

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Whether landlord can file eviction suit even if tenant has paid rent as per notice issued by him?

The view expressed by Division Bench in the matter of Chandiram Ahuja (supra) lays down correct preposition and we are in agreement with the view expressed by the Division Bench in aforesaid matter. The view expressed by Division Bench in the matter of Narhar Wani (supra) does not lay down correct law and we disagree with the view expressed therein.

To infer that once the tenant pays the amount recorded in the notice or tenders the same, the landlord has no right to institute a suit for recovery of possession for non-payment of those arrears or continue with such proceeding for eviction and no decree for possession can be asked for, is not within contemplation of provisions of section 15 of the Act. The provision does not interfere with the right of the landlord to initiate proceeding for eviction, however, sub-section (2) of section 15 prescribes precondition for presentation of suit, that is to say that no suit can be initiated without issuing a notice within contemplation of said sub-section (2) of section 15 and tenant's entitlement to claim relief against forfeiture shall be subject to fulfillment of conditions stipulated under sub-section (1) and (3) of section 15 of the Rent Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 76 of 2010

Decided On: 12.06.2017

 Babulal Vs. Suresh and Ors.

Hon'ble Judges/Coram:

R.M. Borde, R.V. Ghuge and Sangitrao S. Patil, JJ.

Citation:2017(4) MHLJ 406 (FB)

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When revision is tenable against orders passed under Maharashtra rent control Act?

For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.

85. Following are instances of revisable orders.

(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law

(ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC

(iii) an order allowing or rejecting an application for a declaration that the suit has abated

(iv) an order refusing to extend the time for filing a written statement

(v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law

This list is illustrative and not exhaustive.

86. Following are instances of orders which would not be revisable orders:-

(i) an order granting leave to amend plaint or written statement

(ii) an order granting extension of time to file written statement

(iii) an order raising additional issue

(iv) an order made for production of documents or discovery or inspection.

(v) an order directing a plaintiff/defendant to furnish better and further particulars

(vi) an order issuing or refusing to issue a commission for examination of witnesses

(vii) an order issuing or refusing to issue summons for additional witness or document

(viii) an order condoning delay in filing documents, after the first date of hearing.

(ix) an order of costs to one of the parties for its default

(x) an order granting or refusing an adjournment

(xi) an order allowing an application for restoration of the suit under Order 9 Rule 4 of CPC

This list is also illustrative and not exhaustive.

87. As regards question No. 1 about scope and ambit of power of revision under Section 34(4) of the Maharashtra Rent Control Act, 1999, our answer is that after the revisional Court is satisfied about maintainability of the revision application, the revisional Court will consider whether the impugned order is according to law. However, "according to law" refers to the order as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall order, which must be according to law, which it would not be, if there is a miscarriage of justice due to mistake of law. Hence, mere breach of, or non-conformity with, the provisions of Code of Civil Procedure or the Evidence Act or similar other procedural laws, will not be a ground for interfering with the impugned order of the trial Court. The revisional powers are intended to be exercised with a view to subserve and not to defeat the ends of justice. As a general rule where substantial justice has been done by order of the lower Court, the revisional Court will not interfere with it notwithstanding the fact that the reasons for the order are not correct or the order is improper or irregular. The writ petitions will now go back to the learned Single Judge for hearing and deciding them in light of the principles laid down in this judgment.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 9562, 8029 and 907 of 2010

Decided On: 21.01.2013

 Bhartiben Shah, Vs. Smt. Gracy Thomas and Others

Hon'ble Judges/Coram: 
M.S. Shah, C.J., R.V. More & N.M. Jamdar, JJ.
Citation:2013(2) ALLMR 9 FB

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How to decide objection that examination in chief of witness is beyond pleading of party?

 So far as Question-B relating to the stage at which objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. is no more res integra in view of the three Judge Bench judgment of the Apex Court in the case of Ameer Trading Corpn.

Ltd.

Ltd (supra); wherein the Court ruled as under: "..... If any objection is taken to any

statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant would not be prejudiced in any

manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open

Court........."

(Emphasis supplied)

91. The reading of the aforesaid extracted portion would go to show that the Apex Court has clearly ruled that if any objection is to be taken to the statement made in the affidavit, then such objection should always be taken before the court in writing and the attention of the witness should always be drawn while cross-examining him. In other words, it is not necessary to decide the objections relating to admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII Rule 4 of C.P.C. as they arise. The determination or decision thereon can be deferred to a later stage of the suit. However, final decision must be recorded before the Court proceeds to judgment. The irrelevant evidence brought on record can always be excluded as the 

question of admissibility of evidence is a question of law. Even the objection that a piece of evidence which was considered by the judgment was irrelevant can be taken up for first time in appeal (see Miller v. Madhodas,

Madhodas 23 Ind App 106 (PC). In Narhari v. Ambabai,

Ambabai AIR 1920 Bom 244, it was held that erroneous omission to object to irrelevant evidence does not make the evidence relevant. Section 33 of the Evidence Act deals with relevancy and not with the mode of evidence. If the evidence is irrelevant, consent of parties cannot make it relevant. Thus, more convenient mode is to admit the objection in the first instance, reserving question of law as to its admissibility until final judgment in the case1

Bombay High Court

Mr.Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008

Bench: V.C. Daga, P.V. Kakade

CORAM: SWANTANTER KUMAR, C.J.

V.C.DAGA, J. AND

V.M.KANADE, J.

DATED: 16th October 2008.

Citation;2008 (6)MH L J (FB)886

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