Gujarat HC: Remand Beyond 15 Days Of Accused Already In Custody S.346(2) BNSS in Session trial is Not Illegal

To put it differently, if the trial of a person accused of an

offence which is triable by a Sessions Court is not concluded

within any specified time frame, such a person cannot seek for

bail. In other words, in respect of the trial of persons accused of

committing offences triable by a Sessions court, the length of

the trial would have no bearing at all. Even if the trial is not

concluded for a reasonably long period of time, the accused

cannot seek for the grant of bail in the same manner as an

accused who is facing a trial of offences which are triable only

by the Magistrate. This clear distinction made by the statute in

respect of offences triable by the Sessions and by the Magistrate

would only indicate that no accused can have a right to demand

that he be released on bail because there is a delay in the

conduct of his trial. If read in this context, the Proviso under

Section 346(2) would lose all its relevance and no accused, who

is accused of committing an offence which is exclusive trial by

Sessions Court, can demand that he be remanded only to a

period below 15 days. {Para 127}

128. We may hasten to add that this does not mean that the

Sessions Court has the discretion to conduct the trial a leisurely

pace. The general provision relating to inquiries and trials which

mandate trial to be conducted on a day-to-day basis will have to

be adhered to and reasons will have to be assigned, if the matter

is being adjourned beyond the following day. This rigor would

always remain, but at the same time, the non-adherence to this

requirement of conducting a trial on a day-to-day basis would

not transform into a right for the accused to contend that his

detention or remand to custody is illegal and that he should be

released on bail forthwith.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 15962 of 2025

VINODBHAI TILAKDHARI TIWARI  Vs STATE OF GUJARAT & ORS.

CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA

and HONOURABLE MR.JUSTICE D. M. VYAS

(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)

Citation: 2026:GUJHC:2986-DB

Print Page

Whether legal heirs have right to file fresh motor accident claim petition after death of injured even though petition filed by him for injury claim is pending?

Here in this case, the claimants, as legal heirs and representatives, have filed a subsequent claim petition while the original was still pending, the right to sue arose on the death of the original claimant and survived on the date when subsequent claim petition was filed. As was held in the case of Surpal Singh (supra), maxim action personalis mortiur cum persona cannot be imported to defeat the purpose and the object of a social welfare legislation of the M.V. Act to give advantage to the wrong doer. Once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation, on the ground that injury was personal to the claimant, will be giving a premium to the wrong committed, which would itself defeat the very purpose and object of the legislation. The subsequent petition was filed at the time when the original petition was yet pending. It is not the case that the original petition filed by the original injured came to be dismissed as abated. The cause of action still survived on the day when MACP no.292/17 was filed. The only diversion made by the petitioners is filing of MACP no.292/17 by paying extra Court fees. Thus, the registration number of the petition stood to be different than that of the original and subsequently, the original petition was withdrawn. So filing of another petition on the cause of action, which arose on the death of the injured would be maintainable under Section 166(1). {Para 23}

(c) of the M.V. Act.

 GUJARAT HIGH COURT

Jiteshkumar Rajubhai Parmar vs Bhavnaben Dilipbhai Vyas on 6 April, 2023

C/SCA/6993/2019

Author: Gita Gopi

Print Page

Whether the court can impose any condition while releasing accused on bail which amounts to exercising powers provided under any other enactment?

  Keeping in mind the aforesaid legal

provisions, more particularly if the Condition No.6

imposed by the learned Sessions Judge, is read over,

the same is completely beyond jurisdiction of the

learned Sessions Court while exercising powers under

Section 439 of the Cr.P.C. I say so because the same

is amounting to usurping powers envisaged under

Section 10(6) of the Act of 2003, that too without

following any procedure as prescribed. Thus, the

impugned condition imposed by the Sessions Court

while exercising powers under Section 439 of the

Cr.P.C., in my considered opinion, is beyond its

competence and is also contrary to the provision of

the Act of 2003. The Sessions Court while exercising

discretionary powers under Section 439 of Cr.P.C.

and while imposing condition, could not have

overlooked the provision of the Act of 2003 and could

not have passed an order imposing condition akin to

provision of Section 10(6) of the Act of 2003. Thus,

the bank guarantee which is furnished by the

petitioner cannot be in such a way appropriated

and/or forfeited in favour of complainant State,

without following due procedure of law prescribed

under the Act of 2003. {Para 13}

14. In view of the aforesaid discussion, in my

considered opinion, Condition No.6 imposed by the

learned Principal District and Sessions Judge

(Designated Court), Rajkot while exercising its power

under Section 439 of the Cr.P.C., is beyond its

competence and thus, the said condition deserves to

be deleted.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 4953 of 2022

KIRANKUMAR VANMALIDAS PANCHASARA Vs STATE OF GUJARAT

CORAM: MR. JUSTICE NIRAL R. MEHTA

Date : 20/06/2022

Print Page

Whether government is liable to pay interest if there is delay in payment of gratuity?

 The respondents are directed to pay to the petitioner

the amount of gratuity of Rs.10 lakhs within a period of

10 weeks from the date of receipt of copy of this order.

Since the petitioner superannuated on 14.06.2013 and

the amount of gratuity has been wrongfully withheld by

the respondents, the petitioner shall be entitled to

interest at the rate of 9% from the date of his

superannuation till the date of actual payment. {Para 10}

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 4452 of 2019

ASHVINKUMAR RAMNIKLAL JANI Vs STATE OF GUJARAT

CORAM: MR. JUSTICE BIREN VAISHNAV

Date : 19/04/2022

Print Page

What is distinction between attachment of property and charge over property?

 12 We take this opportunity to explain the effect of attachment and also the effect of charge. In Mulla's Civil Procedure Code, 8th Edn., the law as applicable in India is thus summarised (p. 187):

“Attachment creates no charge or lien upon the attached property. It merely prevents and avoids private alienations; it does not confer any title on the attaching creditors. There is nothing in any of the provisions of the Code which in terms makes the attaching creditor a secured creditor or creates any charge or Hen in his favour over the property attached. But an attaching creditor acquires, by virtue of the attachment, a right to have the attached property kept in custodia legis for the satisfaction of his debt, and an unlawful interference with that right constitutes an actionable wrong.”

13 The Privy Council in Moti Lal v. Karrabuldin (1897) I.L.R. 25 Cal. 179, p.c. where Lord Hobhouse stated (p. 185):

“Attachment, however, only prevents alienation, it does not confer title.”

14 Similarly, in the Calcutta Full Bench case of Frederick Peacock v.

Madan Gopal (1902) I.L.R. 29 Cal. 428, F.B. Sir Francis Maclean, in

delivering the judgment of the Full Bench, says (p. 431):

“I think, therefore, it must be taken that the attaching creditor here did not obtain by his attachment any charge or lien upon the attached

property, and if so, no question as to the Official Assignee only taking the property of the insolvent subject to any equities affecting it, can arise.”

And Mr. Justice Ghose says (p. 483):

“I am clearly of opinion that the attaching creditor did not acquire any title or charge upon the property by reason of the attachment in

question.”

15 A charge on the other hand under Section 48 of the GVAT Act

creates no interest in or over a specific immovable property, but is only a security for the payment of money. (See : Dattatreya Shanker Mote vs. Anand Chintaman Datar and others (1974) 2 SCC 799).

16 The concept of charge emanates from Section 100 of the Transfer

of Property Act. Section 100 of the Transfer of Property Act, 1882

defines “charge” as follows:

“100. Charges.- Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust- property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.”

17 The above-mentioned Section clearly indicates the following types of charges :

1) Charges created by act of parties; and

2) Charges arising by operation of law.

18 The words “by operation of law” are more extensive than the

words “by law” and a charge created by operation of law includes a

charge directly created by the provisions of an Act (like Section 48 of the GVAT Act) as well as other charges created indirectly as a legal consequence of certain conditions. The expression “operation of law” only means working of the law.

19 A charge, as we have already seen, is a right to receive a certain

sum of money. If a dealer registered under the GVAT Act incurs any

liability towards payment of tax, then the State has a right to receive a certain sum of money as crystallized in the form of liability. This

recovery of the money from the property can be by attaching the assets of the defaulting dealer, and thereafter, putting those to auction. This type of recovery would be governed by the provisions of Section 46 of the GVAT Act.

20 In the case on hand, it could be said that the day the assessment

order came to be passed determining the liability of the writ applicant under the provisions of the GVAT Act, a charge over the immovable assets of the writ applicant could be said to have been created in favour of the State by operation of law, as envisaged under Section 48 of the GVAT Act. Today, the recovery might have been stayed by the first appellate authority, but, tomorrow, if the first appeal as well as the second appeal that may be filed by the writ applicant is dismissed, then the next step in the process would be the recovery of the requisite amount. What could be said to have been done as on date is just to make one and all aware that by operation of law, as envisaged under Section 48 of the GVAT Act, there is a charge of the State Government over the immovable properties owned by the writ applicant, as described above. How would all come to know about the same. It is for this reason that an entry is ordinarily made in the revenue records.

21 We would like to clarify that what has been done by the Talati-cum-Mantri does not amount to attachment of the property. There is no attachment. We reiterate that there is a fine distinction between attachment of property and a charge over the property by operation of law.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 5413 of 2022

SHREE RADHEKRUSHNA GINNING AND PRESSING PVT. LTD. Vs STATE OF GUJARAT

CORAM: MR. JUSTICE J.B.PARDIWALA and  MS. JUSTICE NISHA M. THAKORE

Date : 29/03/2022

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

Print Page

Can the court grant probate to the legatee or executor of the will only?

  In the said backdrop, if the provisions of Probate and Letter

of Administration are referred to under the Indian Succession Act,

1925 (herein after referred to as “the Act”) the same are as under:

“222. Probate only to appointed executor. - (1)

Probate shall be granted only to an executor appointed by

the Will.

(2) The appointment may be expressed or by necessary

implication.

232. Grant of administration of universal or residuary legatees. - When -

(a) the deceased has made a Will, but has not appointed

an executor, or

(b) the deceased has appointed an executor who is

legally incapable or refused to act, or who has died before

the testator or before he has proved the Will, or

(c) the executor dies after having proved the will, but

before he has administered all the estate of the deceased,

a universal or a residuary legatee may be admitted to

prove the Will, and letters of administration with the Will

annexed may be granted to him of the whole estate, or of

so much thereof as may be unadministered.”

5.2 Thus, from a bare reading of the aforesaid provisions, it is

abundantly clear that by virtue of Section 222, Probate shall be

granted only to an executor appointed by the Will and if the

deceased has made a Will, but has not appointed an executor,

letter of administration can be granted by virtue of Section 232(a) of the Act.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 16538 of 2017

MAHENDRA HARILAL PAREKH & 1 Vs MEENABEN HIRENBHAI PAREKH

CORAM: DR. JUSTICE ASHOKKUMAR C. JOSHI

Date : 16/03/2022

Print Page

Can the court condone a delay of 399 days in filing of an appeal on the ground of financial crisis?

 As the impugned order has been passed against the

applicant herein who wants to prefer Appeal from Order,

has definitely a legal right to challenge the order of the

trial Court by way of filing Appeal from Order. At this stage

only the point needs to be considered as to whether the

delay occurred in preferring the said Appeal from Order is

well explained or not. Now as the legal settled proposition

which has been set-out here-in-above, considering the

prevalent economy condition of the parties as well as even

of the Country, the financial crisis can be considered to be

one of the grounds for condonation of delay. The pivotal

point of consideration would be whether the parties

concerned has taken dilatory tactics in proceeding with the

matter for initiated any proceedings or whether there is a

malafide on his part or not. If there is a malafide attributed

and established against the party concerned, then

definitely even shortest delay cannot be condoned. It

cannot be presumed that a person against whom an interim

injunction is operating, would adopt dilatory tactics except

in case of compelled circumstances or circumstances out of

his control, he may not be in a position to initiate or

execute or take appropriate immediate steps against the

injunction operating against him. Therefore, it cannot be

presumed that the applicant was not proceeding with the

matter bonafidely or there was dilatory tactics on his part

in initiating the proceedings of Appeal from Order against

the impugned order of injunction which is operating

against him. Therefore, in present case, the applicant has

made out sufficient cause for condonation of delay of 399

days occurred in preferring Appeal from Order. If

application is condoned, no prejudice is likely to be caused

to the other side and the other side would also get

appropriate opportunity if Appeal from Order is preferred.

{Para 14}

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL APPLICATION NO. 941 of 2020

NANDLAL NAMDEV OTWANI Vs VIJAY JAYPRAKASH AHUJA

CORAM:  DR. JUSTICE A. P. THAKER

Date : 15/02/2022

Print Page

Whether appellate court can direct remand of the cheque dishonour case if there is the intermingling of documents?

 On going through the aforesaid factual scenario, it

appears that since the proceedings before the same Judge and

statutory notices as well as cheques and other documentary

evidence alleged to have been intermingled due to which they

were found to be mismatching with the pleadings, but the

learned Magistrate could have afforded reasonable opportunity

of interchanging the statutory notices as well as cheques in the

complaint so as to match with the factual scenario that was

merely a clerical mistake committed on behalf of learned

advocate for the complainant which has rendered into grave

prejudice as well as injustice to the complainant which

deserves to be remanded with a liberty to the appellantoriginal

complainant to give an opportunity of interchanging

statutory notices and cheques and correcting the records of

respective cases.

7. In the result, the appeals are hereby allowed. The

impugned Judgment and order dated 02.04.2018 rendered by

the learned 4th Additional Chief Judicial Magistrate, Anand in

two different Criminal Cases being Criminal Case No.1282 of

2017 and Criminal Case No.1283 of 2017, acquitting the

respondent-accused, is hereby quashed and set aside. The

matters are remanded to the learned trial Court to afford a

reasonable opportunity of interchanging the documentary

evidence as well as to prove the license of the appellant for the

year 2017 which is already on record and thereafter, after

affording reasonable opportunity of hearing, the learned trial

Court shall decide the matters afresh. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 2062 of 2018

With

R/CRIMINAL APPEAL NO. 2065 of 2018

DILIPBHAI BHAGWANDAS AASHWANI PROPRIETOR PAPPU FINANCE  Vs  STATE OF GUJARAT 

CORAM: MR.JUSTICE R.P.DHOLARIA

Date : 04/12/2019

Print Page

Whether former husband of Muslim wife can refuse to pay permanent alimony to her if she remarries after divorce?

 We may conclude observing that when the Court makes an award of permanent alimony or for one time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. In fact, it is something different from the obligation of her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the judgment debtor from his future liabilities unconditionally. On the other hand, the grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee. On such remarriage, that status of divorcee comes to an end and she acquires another marital status as someone's spouse. Under the Act, 1986 as well as under Section 125 Cr.P.C., the wife includes a divorcee. Therefore, when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in new relationship. The obligation of maintaining the divorced wife is shifted to the husband, whom she subsequently marries. The future obligation to maintain her by her previous husband comes to an end. That makes a case of permanent alimony different from a case of grant of periodical maintenance. The former is to discharge the husband from his obligation for all times in lieu of a settled reason, in the later, he is required to continuously discharge his obligations at interval of every period. This proposition of law laid down by us should be looked into keeping in mind Section 3(1)(a) of the Act, 1986. A divorced woman is entitled to 'a reasonable and fair provision" and "maintenance" to be made and paid to her within and post the Iddat period by her former husband. The Supreme Court in Danial Latifi (supra) interpreted this as two separate obligations. The Court found "reasonable and fair provision' to mean a provision in advance for the future needs of the ex-wife including her residence, food, clothes and other necessities. The Supreme Court found that the Act, 1986 requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his wife for the rest of her life but that he must pay this amount in total during the iddat Period. At the cost of repetition, we state that the provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.{Para 79}

80. From the aforesaid discussion the following conclusions emerge;

(A) Before the enactment of the Act, 1939, a woman, under pure Muslim Law, had no right to get a decree for divorce from the husband if the husband refuse to divorce her. The Act, 1939, for the first time, conferred a legal right to move the Civil Court for a decree for dissolution of marriage on the grounds specified in Section 2 of the Act, 1939. After the Act of 1939, a wife thus had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.

(B) A decree for dissolution of marriage obtained by the wife under the provisions of the Act, 1939 is a legal divorce under the Muslim Law by virtue of the statute. The ex-wife, having obtained divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to reasonable and fair provision under Section 3 of the Act, 1986.

(C) Section 20 of the Family Courts Act, 1984 gives an overriding effect to the provisions of the Act over all other enactments. The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.

(D) The dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.

(E) The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.

(F) The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.

(G) When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.

(H) The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation of the spouse to maintain her so long as she enjoys the continued the status of divorcee. If the wife gets remarried, her status of divorcee is come to an end and the liability of the husband to pay periodical maintenance would also come to an end.

81. It is brought to our notice by the learned counsel appearing for the respective parties that the appellant herein remarried way back in the year 2014. This is suggestive of the fact that much before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under 494 of the Penal Code. The materials on record further indicates that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. It appears that even during the pendency of such proceedings before the Family Court, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/First Appeal No. 2012 of 2019 and Civil Application No. 1 of 2019 in R/First Appeal No. 2012 of 2019

Decided On: 19.03.2020

 Tarif Rashidbhai Qureshi Vs.  Asmabanu

Hon'ble Judges/Coram:

J.B. Pardiwala and V.B. Mayani, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/GJ/0734/2020

Print Page

Gujarat High Court Allows Persons Having Full Time/Part Time Jobs Having Law Degree To Get Enrolled, Enrolment Certificate Shall Be Withheld

 In such circumstances, referred to above, we read down

Rules 1 and 2 respectively of the Bar Council of Gujarat

(Enrollment) Rules so as to read that a person may be either in

full or part time service or employment or is engaged in any

trade, business or profession, who otherwise is qualified to be

admitted as an Advocate shall be admitted as an Advocate,

however, the enrollment certificate of such a person shall be

withheld with the Bar Council and shall lie in deposit with the

Council until the concerned person makes a declaration that the

circumstances mentioned in Rule 2 have ceased to exist and that

he or she has started his/her practice.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 15123 of 2019

TWINKLE RAHUL MANGAONKAR Vs UNION OF INDIA

CORAM:  THE CHIEF JUSTICE MR. VIKRAM NATH

and  MR. JUSTICE J.B.PARDIWALA

Date : 06/11/2020

(PER :  MR. JUSTICE J.B.PARDIWALA)

Print Page

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

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

 IN THE HIGH COURT OF GUJARAT

Civil Revn. Appln. No. 1072 of 1998

Decided On: 31.08.1998

Zakinaben  Vs. Babubhai Alimohmad Kapadia and Ors.

Hon'ble Judges/Coram:

D.C. Srivastava, J.

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

Print Page

Whether the court can refuse maintenance to the wife if she gives contradictory admission in her cross-examination?

On perusal of entire material on record, it appears that the husband has heavily relied upon the statement made by the wife during her chief­examination to the effect that cheque given by the husband is dishonoured and, during her cross­examination, she has admitted that the cheque was encashed. Thus, solely on this ground, it is argued that the wife is making false statements and she is not entitled to get any maintenance from the husband. It is well settled that entire evidence, which includes chief­examination, cross­examination and re­examination if any, is required to be appreciated. Lapses or incorrect statement or false version put forward in chief­examination is not sufficient to discard other facts narrated in the deposition of the wife. Therefore, the stand taken by the husband against such statement cannot be accepted and the argument that the wife is not entitled to receive maintenance due to this, is devoid of merits.

Gujarat High Court

Ajitbhai Mohanbhai Parghi vs State Of Gujarat on 3 September, 2020

Bench: A. P. Thaker

   R/CR.RA/74/2020                                      

Print Page

Whether parties can dissolve marriage registered under Special Marriage Act by executing divorce deed on stamp paper?

It is the requirement of the statute that once having chosen to be spouses under the Special marriage Act, it is necessary for the parties to take recourse to the very law to even permanently severe the ties. In the instant case, although the marriage took place as mentioned hereinabove under the Special Marriage Act for the reasons best known to respondent No. 4, who claims to have got the purported document executed on the Rs. 100/- stamp paper before the Notary. That itself is raising question mark in relation to this very document. However, we are not presently to adjudicate upon the said issue and any claim made on the strength of the said document or any refusal that comes from the Respondent no. 4 claiming through this document, shall need to be presently denied. For the purpose of writ of habeas corpus, we have chosen not to permit reliance on the said document noticing the very question of validity of this document coupled with serious allegations of against mother of the applicant as all these can be sorted out by the respective parties in the appropriate proceedings.

In the High Court of Gujarat at Ahmedabad

(Before Sonia Gokani and N.V. Anjaria, JJ.)

Chavda Twinkle Vs  State of Gujarat

R/Special Criminal Application No. 2800 of 2020

Decided on July 17, 2020

Citation: 2020 SCC OnLine Guj 1167

Print Page

Whether the court must hear victim while deciding bail application of accused in bailable offences under the SC & ST Atrocities Act?

Our final conclusions may be summarised as under :

(1) Section 15A(3) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015 (1 of 2016) is not ultra vires Articles 14 and 21 of the

Constitution of India.

(2) Section 15A(3) of the Amendment Act, 2015, cannot be

termed as manifestly arbitrary.

(3) Section 15A(3) of the Amendment Act, 2015, has to be

construed as mandatory and not directory. The

non-compliance of the said provision would render the

order null and void.

(4) Section 15A(3) of the Amendment Act, 2015, in no

manner imposes any unreasonable restrictions or fetters

on the discretion of the competent court, for the purpose of

considering the plea of bail. The general principles with

regard to grant of bail would continue to apply even in

cases under the Atrocities Act.

(5) The right of a person, who is accused of committing

only bailable offence or offences, if any, under the Act, to

be released on bail, is absolute in view of the provisions

contained in Section 436(1) of the Code of Criminal

Procedure. There is no provision in the Act which curtails

the right of an accused to get bail in a case of bailable

offence. The provisions contained in Section 15A(5) does

not, in any manner, affect the absolute right of a person,

who is accused of only bailable offence or offences, to be

released on bail.

(6) When a person is accused of committing only bailable

offence or offences under the Act, it is not mandatory to

grant opportunity of hearing to the victim or the dependent

as provided under Section 15A(5) of the Act in a proceeding

relating to granting bail to such accused. However, before

the court decides to decline such opportunity to the victim

or the dependent, the court shall thoroughly verify and

ascertain that the allegations against the accused disclose

commission of only bailable offence or offences under the

Act, by him.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 6369 of 2020

THE CHIEF JUSTICE MR. VIKRAM NATH and

 MR. JUSTICE J.B.PARDIWALA 

HEMAL ASHWIN JAIN (SHETH) Vs  UNION OF INDIA

CORAM:  THE CHIEF JUSTICE MR. VIKRAM NATH

and MR. JUSTICE J.B.PARDIWALA

Date : 06/08/2020

(PER :  MR. JUSTICE J.B.PARDIWALA)

Print Page

How to ascertain standard rent of tenanted premises?

10.1. So far the determination of standard rent is concerned, there are two main methods of determining the same, namely the theory of comparables and secondly the investment theory. In the first theory, the exercise can be carried out by comparing the premises in question with the other similarly situated premises in the locality of which the rent is already fixed. Ofcourse while making the exercise of comparison the following factors can be kept in view :-

(a) Premises should more or less be similarly situated in the same locality with the same user,

(b) Relevant period of letting of the comparable premises.

(c) Whether the rents of the comparable premises are fair and reasonable or on the low side due to a number of extraneous circumstances.

(d) the amenities and facilities provided in such building.

By carrying out such exercise the standard rent of the concerned property can be fixed without much difficulty. So far the other method is concerned, it would depend on provisions meant for fixing the standard rent as contained in section 11 of the Bombay Rent Act and also the guidelines laid down by the Apex Court in the case of Dr. Balbir Singh (supra). This again will be subject to the outgoings in the nature of maintenance expenses, expenses for having basic facilities such as making provision for water, the municipal taxes, the required annual repairs, insurance, etc., which may be required to be taken into account even after deduction of sum equal to ten percent towards the allowance for repairs, etc. as envisaged under sub-rule (3) of rule 7 of the Rules. However, as stated earlier the theory of comparables can be adopted provided there is no considerable disparity between the premises. At this juncture more recent decision rendered in the case of Lt. Col. P.R. Chaudhary (Retired) v/s. Municipal Corporation of Delhi reported in MANU/SC/0315/2000by the Apex Court is required to be seen. These observations are vis-a-vis method of fixing the standard rent and they are helpful in determining the Gross Rateable Value in the case of hypothetical tenant. It has dealt with the disparity that may prevail between two premises of same kind because of the disadvantage and it has also pointed out that even in the cases where there is comparison between two buildings one being old and other being newly constructed, there would be great disparity on account of the rising cost of construction, the land prices, etc. and in that case such comparison would be irrational and illogical and, therefore, the factors regarding the increase in cost of construction, land prices, etc. will have to be kept in mind. It has observed as under :-

"Law as interpreted by the Supreme Court cannot be brushed aside by saying that it is not in conformity with statutory provisions. The law laid down by the Supreme Court is explicit and admits of no doubt. For the purpose of arriving at the rateable value the basic principle is the annual rent which the owner of the premises may reasonably expect to get if the premises were let out to a hypothetical tenant. It would depend on the size, situation, locality and condition of the premises and the amenities provided therein. All these and other relevant factors would have to be followed in determining the rateable value. That, however, cannot be in excess of the standard rent which would be the upper limit. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Decided On: 31.03.2003

 A'Bad Municipal Corporation Vs.  Dena Bank

Print Page

Whether Magistrate can refuse to accept the surrender of accused in bailable offence and direct him to surrender before investigating officer?

1) Heard the learned advocates appearing on behalf of the respective parties at length. The short question which is posed for consideration of this Court is whether in a case where the accused is involved in bailable offences and he applies for bail under Section 436 of the Code of Criminal Procedure and he appears and surrenders before the learned Magistrate, whether Magistrate is legally bound to release the Petitioners on ail or he has to appear and surrender before the concerned police officer and furnish the bail bond? Another incidental question which is posed for the consideration of this Court s whether mere receipt of FIR by the concerned Magistrate as required under Section 54 of the Code of Criminal Procedure would amount to proceeding before the Court so as o attract Section 436 of the Code of Criminal Procedure?

2)  Mr. Barot's reliance upon the said case for propoundings a proposition that receipt of the copy of the FIR should also be considered to be the stage of proceeding because the word 'proceeding' used in Section 436, is wide enough to include the proceedings other than the judicial proceedings is misplaced for the simple reason that even if the word "proceedings before a court" were to be construed in a wider sense and not in the restricted sense of judicial proceeding alone then also it would be necessary to have some proceedings before the court and mere receipt of the copy of the FIR by no stretch of imagination can be equated with a stage of proceeding judicial or otherwise. It is only for the sake of giving information to the Magistrate that the police is investigating such a case that the copy of the FIR is sent under Section 157 of the Code of Criminal Procedure. Therefore, the contention on behalf of the Petitioner that receipt of the copy of the FIR by the learned Magistrate should also be considered to be the "proceeding pending" before the learned Magistrate, cannot be accepted.

3) In the present case as stated herein above, no proceedings are pending before the learned Magistrate and therefore, Petitioner straightway cannot appear and surrender before the learned Magistrate and furnish the bail and request the Magistrate to release him on bail under Section 436 of the Code of Criminal Procedure. He has to appear and surrender before the police officer in charge of the police station and furnish the bail and as observed by the learned single Judge in the case of Ramesh Amritlal Chhatral (supra) and even otherwise considering Section 436 of the Code of Criminal Procedure, on giving/furnishing the bail by the accused, as required by the concerned police officer, an accused is entitled to be released on bail.

IN THE HIGH COURT OF GUJARAT

Special Criminal Application No. 2388 of 2010

Decided On: 02.12.2010

 Dinesh Babulal Thakkar Vs.  State of Gujarat

Hon'ble Judges/Coram:

M.R. Shah, J.

Citation: 2010 SCC OnLine Guj 13836,2011 CRLJ 1364, MANU/GJ/1459/2010

Print Page

Whether cross objection is maintainable in a civil revision application?

The cross­objections contemplated under O.41 R.22 are in the nature of substantive right available to the person interested in opposing the appeal cause for which would commence on service of notice upon such person. It is not merely a procedure since the procedure would normally regulate the rights and liabilities of the parties and not invest substantial rights. It is settled law that the statutory rights are exercisable when provided for and in absence of explicit conferment of such right or a remedy, it cannot be claimed. Therefore, the reliance on O.41 R.22 which does not explicitly contemplate a right to cross­objections in revision is of no benefit to the petitioner.

Gujarat High Court

Nasiruddin Fakhruddin Munshi vs Legal Heirs Of Decd. Mohammed Alam ... on 16 January, 2020

Bench: G.R.Udhwani

Print Page

Whether court can suspend sentence of convict in his absence?

I am of the view that in the absence of the convict accused, the learned advocate appearing for him cannot prefer an application under Section 389(3) of the Code for suspension of the sentence to enable the convict accused to prefer an appeal before the Sessions Court. When an order is passed under Section 389(3) of the Code for suspension of the sentence by the trial Court to enable the accused to prefer an appeal before the Sessions Court, then the accused has to furnish bail with necessary sureties. He has to execute the bail bonds. The order under Section 389(3) of the Code will come into force only when the accused furnishes the bail bonds. In such circumstances, in his absence, the learned advocate cannot be permitted to file such an application. There is one more reason in taking this view. If it is permissible for the learned advocate defending the accused to file an application under Section 389(3) of the Code for suspension of the sentence in the absence of the accused being personally present before the learned Magistrate, then the same would render Section 418(2) of the Code otiose or redundant. If the convicted person is released on bail under Section 389(3) of the Code and such person has to furnish the bail, how this process will be undertaken in the absence of the convicted accused. I am of the view that the learned Magistrate rightly observed in the order that the application under Section 389(3) of the Code was not maintainable since the convicted accused was not personally present before the Court. Thus, the fourth question is answered accordingly.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Criminal Misc. Application (for Direction) No. 19862 of 2015

Decided On: 14.11.2016

 Sharad Jethalal Savla Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala, J.

Print Page

Gujarat HC: Suit for specific performance of an agreement for development of a plot of land can not be regarded as a commercial dispute

Therefore, if the dispute falls within any of the clause 2(c) the dispute can be said to be "commercial dispute" for which the Commercial Court would have jurisdiction. It is required to be noted that before the learned Commercial Court the original plaintiff relied upon section 2(c)(i), 2(c)(ii) and 2(c)(xx) of the Commercial Courts Act only. Learned Counsel appearing on behalf of the original plaintiff has candidly admitted and/or conceded that the case shall not fall within clause 2(c)(i); 2(c)(ii) or 2(c)(xx) of the Commercial Courts Act. It is required to be noted that before the learned Commercial Court it was never the case on behalf of the original plaintiff that case would fall within section 2(c)(vii) of the learned Commercial Court. Despite the above we have considered on merits whether even considering section 2(c)(vii) of the Commercial Courts Act, the dispute between the parties can be said to be "commercial dispute" within the definition of section 2(c) of the Commercial Courts Act or not? Considering section 2(c)(vii), "commercial dispute" means a dispute arising out of the agreements relating to immovable property used exclusively in trade or commerce. As observed hereinabove, at the time of filing of the suit and even so pleaded in the plaint, the immovable property/plots the agreements between the parties cannot be said to be agreements relating to immovable property used exclusively in trade or commerce. As per the agreement between the party after getting the plots on lease from the GIDC, the same was required to be thereafter developed by the original defendant No. 1 and after providing all infrastructural facilities and sub-plotting it, the same is required to be given to other persons like the original plaintiff. It is the case on behalf of the original plaintiff that as the original defendant No. 1 has failed to provide any infrastructural facilities and develop the plots and therefore, a civil suit for specific performance of the agreement has been filed. There are other alternative prayers also. Therefore, it cannot be said that the agreement is as such relating to immovable property used exclusively in trade or commerce. It is the case on behalf of the original plaintiff that as in clause (vii) of section 2(c), the phraseology used is not "actually used" or "being used" and therefore, even if at present the plot is not used and even if it is likely to be used even in future, in that case also, section 2(c)(vii) shall be applicable and therefore, the Commercial Court would have jurisdiction. The aforesaid has no substance. As per the cardinal principle of law while interpreting a particular statute or the provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are "immovable property used exclusively in trade or commerce". If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On plain reading of the relevant clause it is clear that the expression "used" must mean "actually used" or "being used". If the intention of the legislature was to expand the scope, in that case the phraseology used would have been different as for example, "likely to be used" or "to be used". The word "used" denotes "actually used" and it cannot be said to be either "ready for use" or "likely to be used"; or "to be used". Similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dineshkumar Gulabchand Agrawal (Supra) and it is observed and held that the word "used" denotes "actually used" and not merely "ready for use". It is reported that SLP against the said decision has been dismissed by the Hon'ble Supreme Court.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Appeal From Order No. 199 of 2017 and Civil Application No. 8083 of 2017 in Appeal From Order No. 199 of 2017

Decided On: 10.07.2017

 Vasu Healthcare Private Limited  Vs.   Gujarat Akruti TCG Biotch Limited and Ors.

Hon'ble Judges/Coram:

M.R. Shah and B.N. Karia, JJ.

Citation: AIR 2017 Guj. 153

Print Page

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 

Print Page