Himachal Pradesh HC: Owner of goods vehicle is liable to pay compensation regarding death or injury of gratuitous passenger travelling in his vehicle

The differentiation in two situations can be marked for the reason that in the former case of non-existence or non-holding of the driving license there still is a subsisting contract of insurance covering the risk of third party but in the other there is no contract covering the risk as no premium has been charged or paid for person not covered under the categories defined under section 147 of the Act or by a special contract.

32. Thus, the contention so raised merits rejection for the reason; firstly that there is no provision in the Act which allows the insurer to pay in the first instance and recover later from the insured where the claim relates to gratuitous passenger in a Goods Carriage Vehicle and secondly in view of the law settled in New India Insurance Company Ltd. Vs. Asha Rani, MANU/SC/1105/2002 : 2002:INSC:513 : 2003 ACJ (1), National Insurance Co. Vs. Baljeet Kaur, MANU/SC/0009/2004 : 2004:INSC:19 : 2004 ACJ 428. Both these judgments by three judges' benches expounded the law with respect to liability of insurer to indemnify the insured in respect of claims arising out of death or bodily injury to a gratuitous passenger in a Goods carriage Vehicle and held in favour of insurer. Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Parvathneni in MANU/SC/1418/2013 : (2018) 9 SCC 657 has kept the question of law open on the issue whether the Supreme Court in exercise of powers under Article 142 of the Constitution can direct the insurer to pay and recover, where the liability otherwise does not arise in case of gratuitous passenger. This court while expressing above view has drawn support from judgment passed by a Division Bench of High Court of Judicature at Madras in Bharti AXA General Insurance Co. Ltd. Vs. Aandi reported in MANU/TN/6503/2018 : 2019 ACJ 1975.

33. In view of above discussion, FAO No. 448 of 2018 is allowed. It is held that the insurer is not liable to indemnify the insured. The owner Amba Dutt is held liable to satisfy the award. The quantum of award is also modified to the extent as held above.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO No. 448 of 2018 and FAO No. 34 of 2019

Decided On: 30.04.2025

The Oriental Insurance Company Ltd. Vs. Sheru and Ors.

Author: Satyen Vaidya, J.

 Citation: 2025:HHC:11512,MANU/HP/0601/2025.

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Himachal Pradesh HC: Whether claim petition U/S 163A of Motor vehicle Act is to be dismissed if annual income of claimant is more than Rs 40000/-?

 At the cost of repetition, the Claims Tribunals have powers under Section 166(4) of the MV Act read with Section 158 (6) of the MV Act and the Motor Vehicles Rules to treat any petition either under Section 163-A or Section 166 of the MV Act. The scope, aim, object and reasonable logic behind such legislation nowhere empowers the Claims Tribunals to dismiss a claim petition filed by the victim on the ground of income slab, who has chosen to file the same under Section 163-A of the MV Act with a hope that he will get compensation as early as possible. The Claims Tribunals have the power to treat the same under Section 166 of the MV Act so as to redress the grievances of the victims. If the claim petition is dismissed on such grounds, that will defeat the purpose of the Act and will amount to succumbing to the technicalities. {Para 23

61. This ground is not available to the insurer for the reason that, as discussed hereinabove, the claim petition cannot be dismissed on that ground and it can be treated as claim petition under Section 166 of the MV Act. Though, the claimants have averred that the income of the deceased was ` 6,000/- per month, but, the Tribunal has held that the income of the deceased was ` 3300/- per month. Thus, his income was not more than ` 40,000/- per annum, and the claim petition under Section 163-A of the MV Act was maintainable.

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO No. 474 of 2010

Decided On: 28.09.2016

Oriental Insurance Company Ltd. Vs. Sihnu Ram and Ors.

Hon'ble Judges/Coram:

Mansoor Ahmad Mir, C.J. and Sandeep Sharma, J.

Author: Mansoor Ahmad Mir, C.J.

Citations: 2016 SCC ONLINE HP 2224, 2017 ACJ 2186, MANU/HP/1185/2016.

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Himachal Pradesh HC: Claimant of Motor accident must examine Doctor to prove permanent disability certificate

The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. {Para 12}

10. Thus, it is obvious that mere production of a disability certificate is no proof of the extent of disability till the Doctor who issued the certificate or treated the patient is tendered for cross examination in Court. The Apex Court also held that the same injury can lead to different loss of earning capacity and summarized the principles in the following terms:

Fourthly, in cases where the certificates are not contested by the Respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.

13. Consequently, the award is set-aside and the matter is remanded to the learned Tribunal. The learned Tribunal shall decide the application filed by the Insurance Company under Section 170 of the Act at the first instance. Thereafter, it shall give only one opportunity to the claimant to produce the Doctor since in this case the claimant had already taken a number of opportunities and had also taken dasti summons to produce the doctor. No application for examination of the doctor on commission shall be entertained and it shall be the responsibility of the claimant to serve and produce the doctor who issued the disability certificate. Only one opportunity in this behalf shall be given and in case the claimant fails to produce the doctor, the evidence of the claimant shall be closed. In case the doctor is examined, an opportunity to rebut the evidence shall be given to the Respondents and to the Insurance Company if it is permitted to contest the claim on all grounds.

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 227 of 2009

Decided On: 09.03.2011

Oriental Insurance Company Vs. Parveen and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: MANU/HP/0662/2011,2012 ACC 2 3192011 SCC ONLINE HP 7432011 ACJ 2692.

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Himachal Pradesh HC : Transgender Persons Cannot Invoke Section 69 Of BNS In False Promise Of Marriage Cases

 As per definition pronoun "he" and its derivatives are used of any person, whether male, female or transgender. For the first time, word "transgender" has been included in the definition of "gender", meaning thereby, transgenders cannot claim themselves to be male or female as they are given separate identity. {Para 10}

11. Section 2(35) of BNS defines "Woman" as under:

"2 (35) "woman" means a female human being of any age."

12. As per aforesaid provision of law, woman means female human being of any age. Since under BNS, "woman" and "transgender" have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim- prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS.

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP(M) No. 1798 of 2024

Decided On: 30.08.2024

Bhupesh Thakur Vs. State of Himachal Pradesh

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: MANU/HP/2423/2024.

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Whether motor accident claim petition will be abated if legal representatives of driver-cum-owner are not brought on record?

Learned counsel for the appellant-insurer argued that the claim petition has abated in view of the death of the driver-cum-owner, who came to be deleted from the array of respondents vide order, dated 2nd December, 2006, and his legal representatives have not been brought on record. The argument is misconceived and devoid of any force for the following reasons: {Para 18}

21. These provisions of law provide that the mandate of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is not applicable in such cases. It is for the Tribunal to decide the cases, as early as possible.

22. The Apex Court and other High Courts have held that the Courts should not succumb to the procedural wrangles and tangles, hyper technicalities and mystic maybes and that should not be a ground to dismiss the claim petition and to defeat the rights of the claimants.

24. The High Court of Rajasthan in the judgment delivered in a case titled as Shiv Chandra and another versus Jasvinder Singh and others, reported in MANU/RH/0106/1991 : 1992 ACJ 747, has discussed the provisions of law and the Rules, which were applicable in the State of Rajasthan and held that the appeal had not abated on the failure to bring the legal representatives of the deceased owner on record.

25. The Delhi High Court in a recent judgment in the case titled as Oriental Insurance Co. Ltd. versus Biro Devi and others, reported in MANU/DE/0098/2014 : 2015 ACJ 340, has also discussed the provisions of Section 169 of the MV Act and the Rules applicable and held that the death of the owner of the vehicle is not a ground for evading the liability and it has no legal significance in the contractual relationship between the insurer and insured for the purpose of fastening the liability.

28. This Rule provides which of the provisions of the CPC are applicable. Order XXII of the CPC deals with abatement and the provisions of said Order have not been made applicable. Only on this count, the argument of the learned counsel for the appellant merits to be turned down.

29. Chapter XII of the MV Act is a complete code and provides the mechanism how to determine the claim petitions and appeals. Section 155 of the MV Act provides what is the effect of death of the insured on cause of action. It specifically provides that Section 306 of the Indian Succession Act, 1925 (39 of 1925) cannot affect the claim petitions or appeals if the insured has died after the happening of the event.

30. It is apt to reproduce Section 155 of the MV Act herein:

"155. Effect of death on certain causes of action. - Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been insured, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO No. 17 of 2008

Decided On: 20.03.2015

United India Insurance Company Limited Vs. Brijbala and Ors.

Hon'ble Judges/Coram:

Mansoor Ahmad Mir, C.J.

Author: Mansoor Ahmad Mir, C.J.

Citation: MANU/HP/0132/2015,2016 ACJ 1554 (HP).

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Whether in claim petition insurance company can be permitted to pay interest from the date it was impleaded as party if it was impleaded at later stage?

Claim petition, in the instant case, was filed and the insurer was arrayed as party at later stage for the simple reason that it was not known to the claimant as to who was the insurer of the offending vehicle. The name of the insurer was disclosed by the insured during the pendency of the claim application and only thereafter the insurer was arrayed as party respondent in the claim petition. Thus, how it can be said that the claimant is not entitled for interest or interest is to be recovered from the owner prior to arraying of the insurer as a party respondent. {Para 6}

7. The purpose of mandate of the Insurance Act, read with the mandate of sections 146 to 149 of the Act, is that the owner is under legal obligation to get the vehicle insured and the purpose of insurance is that third parties, as also the damage caused to the vehicle by the driver, are protected. Thus, by no stretch of imagination, it can be said that the liability of the insurer to pay interest starts from the date of its impleadment as party in the claim petition.

8. It is also well established that a person who is impleaded as party to a lis in terms of Order 1, rule 10 of the Code of Civil Procedure (for short, the CPC), he becomes party to the lis right from the date of institution of the lis, and thus, it cannot be claimed that the petition is barred by time and he should be saddled with the liability from the date of impleadment. If that ground was available to the insurer, it should have questioned the impleadment order, which it has not. The insurer has accepted the order of impleadment and has not made any murmur.

12. Thus, from the bare perusal of the above provision, it is clear that section 171 of the Act mandates that the claimant is entitled to interest from the date of filing of the claim petition or from the date of the judgment and not earlier to that. Section 171 of the Act nowhere provides that in case a party is arrayed in the claim petition at a subsequent date, that party has to be saddled with the interest from the date of impleadment and not prior to that. Having said so, no case is made out for interference. Accordingly, the impugned award is upheld and the appeal is dismissed.

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

F.A.O. No. 215 of 2008

Decided On: 07.08.2015

United India Insurance Co. Ltd. Vs. Manohar Lal and Ors.

Hon'ble Judges/Coram:

Mansoor Ahmad Mir, C.J.

Citation: 2016 ACJ 1612 (HP), MANU/HP/1387/2015.

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Whether revisionist should bring legal representatives of deceased complainant on record in criminal revision?

The question for determination, in fact, is whether the legal representatives of the deceased respondent must be impleaded as party respondents in the present revision petition or not? As already stated hereinabove, there is no provision in the Code providing for substituting the legal representatives of a deceased respondent in a criminal revision petition. It is also settled position in law that even in a private complaint if the accused is convicted and sentenced and he prefers an appeal or revision, the State has to take care of defending the conviction and it has to be heard in support of the conviction and sentence even if the complainant does not put in appearance to support the conviction and sentence, Nevertheless, in my view, the complainant in such a case at least must be served with a notice of the appeal/ revision. It is so because while deciding a case, the Court has to keep in mind two principles viz. (i) no person should be condemned unheard, and (ii) justice should not only be done but it must seem to have been done. Therefore, the application to and the legal representatives of the deceased respondent as such in the revision petition has to be examined against this background.

{Para 7}

8. The petitioner was tried on the basis of a private complaint in a non-cognizable offence and was finally convicted and sentenced. The impugned order provides that out of the amount of fine of Rs. 35,000/-, a sum of Rs. 25,000/- be paid to the complainant, evidently as compensation on account of the dishonour of the cheque issued by the petitioner in favour of the deceased respondent. Thus, a fiscal interest in favour of the deceased had accrued by virtue of the impugned order itself. After his death and in the event of maintaining the impugned order, his legal representatives will be entitled to the amount ordered to be refunded/paid to the deceased respondent. In case the revision petition is allowed, the interest so accrued in favour of the deceased respondent and after his death in favour of his legal representatives, shall stand extinguished. In view of this situation, I am of the view that it will be in the interest of justice in such cases that a person who is interested as a legal representative of the deceased complainant is being heard and defending the order, must be given an opportunity of being heard in the interest of justice.

9. Though the Code does not provide for impleading the legal representatives of a deceased party in a criminal revision petition, yet at the same time the Code also does not provide that the successors of the deceased complainant/respondent in a criminal case were the accused has been convicted and sentenced and financial benefit has accrued by the order of conviction and sentence in favour of the complainant or his legal representatives, they cannot be heard as party respondent in the petition, or the Court is debarred from hearing them. I am, thus, of the view that in the given circumstances of the case, the legal representatives of the deceased respondent must be substituted as party respondents in the revision petition and must be given an opportunity of being heard. This Court under its inherent powers, in my opinion, is fully competent to do so and to afford them an opportunity of being heard in the interest of justice.

 IN THE HIGH COURT OF HIMACHAL PRADESH

Cri. M.P.(M) Nos. 416 and 417 of 2001 in Crl. Revn. No. 104 of 1999

Decided On: 12.10.2001

Mohinder Dutt Sharma Vs. Bhagat Ram and Ors.

Hon'ble Judges/Coram:

M.R. Verma, J.

Citation:  MANU/HP/0033/2001,– 2002 Cri L J 529 (HP).

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Whether a person can be held guilty for an offence of stalking if he installs CCTV camera towards the house of a lady?

 Section 354-D of IPC reads as under:-

354-D. Stalking.—(1) Any man who—

(i) follows a woman and contacts, or attempts to contact

such woman to foster personal interaction repeatedly

despite a clear indication of disinterest by such woman;

or

(ii) monitors the use by a woman of the internet, email or

any other form of electronic communication,

commits the offence of stalking:

{Para 17}

18. It is apparent from the bare perusal of the Section

that a person should have followed a woman or contacted such

woman to foster personal interaction or should have monitored

the use by the woman of the internet, email or any other form of

electronic communication. The case of the informant is that

petitioner No.1 has installed a CCTV camera and she suspects

that petitioner No.1 and his son are watching her with the help of

the CCTV camera. There is no proof that the CCTV Camera is

directed towards the house of the informant and it is merely a

suspicion. Further, there is no proof that the petitioners/accused

had contacted the informant to foster a personal relationship.

The petitioner nowhere stated any attempt was made to contact

her to foster any personal relationship with her. The informant

did not state that she was using the internet, e-mail or any other

form of electronic communication and petitioner No.1 was

monitoring such activity. Therefore, the contents of FIR do not

satisfy the ingredients of Section 354-D of IPC. It was laid down

by Kerala High Court in Jai Prakash Vs. Shiva Devi 2023 Kerala

37594 that merely calling a woman on the phone does not satisfy

the ingredients of Section 354-D unless there is an attempt to

foster personal interaction.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 993 of 2022

Sumehar Chand Narwal and others Vs State of H.P. and others 

Coram

Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Date of Decision: 10.01.2024.

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Whether government servant who retired before commencement of GR can take benefit of said GR for claiming higher pension?

It also cannot be disputed that the amendment

in the rules as made vide notification dated 12.6.2018 was

to come into force from the date of its publication in the

Rajpatra of Himachal Pradesh. {Para 7}

8. The question thus arises whether the petitioner

who had retired on 31.8.2017 would be entitled to the

benefit of notification dated 12.6.2018?

9. In my considered view the question deserves to

be answered in affirmative for the reason that pension is

earned by a government servant in lieu of the services

rendered by him. It is the security for which he serves the

public besides what he earns by way of monthly

emoluments during service. The rules prescribing the

norms for disbursement of the amount of pension have to

be considered in that perspective. Since it is a beneficial

provision for the government servant, therefore, any

narrow construction will render the purpose of granting the

same otiose.

10. Since, the notification dated 12.6.2018 was for

the benefit of an entire class i.e. class III and IV employees

of the State Government it could not be construed to

benefit only those who would retire after the issuance of

the notification for such a classification will clearly be

discriminatory. The pension is a recurring benefit to a

retired government servant, therefore, the notification

dated 12.6.2018 promulgating a beneficial rule will also

enure for benefit of petitioner, who still was entitled to

pension on the date of such promulgation.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. 7658 of 2020

Veena Devi  Vs State of H.P. &others 

Coram:

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Decided on : 28.8.2023.

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Whether S 35 B of CPC is mandatory or directory?

 After considering all the aforesaid Authorities, with due respect to the Punjab & Haryana High Court, I am not inclined to accept the view taken by that Court. The Rules of Procedures are meant to be the handmaiden of justice to further the cause of justice. The party in a given case may have a very valid ground to explain why it could not pay the costs on the next date. The Court must always have a discretion to examine whether the reasons put forth by the party are valid or not. Section 148, CPC empowers a Court to extend time in any matter. This power would be set at naught if it is held that the provisions of Section 35B, CPC are mandatory and that the Court would have no option but to stop the further prosecution of the suit by the plaintiff or strike off the defence of the defendants in case of non-payment of costs. I am in agreement with the reasoning given by the Orissa, Patna, Gauhati and Rajasthan High Courts and consequently I hold that the provisions of Section 35B, CPC are not mandatory but are only directory. The Court may in the absence of the concerned party, or in the absence of any plausible explanation for non payment of costs pass an order stopping the further prosecution of the case by the defaulting party. However, the Court, in some circumstances, may not pass such an order. {Para 12}

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 27.06.2008

Piaro Devi Vs. Anant Ram and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: MANU/HP/0122/2008,AIR 2008 HP 107.

Read full Judgment here: Click here

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Whether Order dismissing a suit for non payment of costs is a decree and whether the same court can recall said order?

The Apex Court has clearly held that dismissal of the suit for non-prosecution is not a decree as specified by Section 2(2) of the C.P.C. There is no difficulty in holding that an order dismissing a suit for non-payment of costs is essentially an order dismissing the suit for non-prosecution. Therefore, in my humble opinion, the order dismissing the suit for non-payment of costs is not a decree. {Para 22}

23. Coming to the third question, I am of the considered opinion that in view of the law laid down by the Apex Court and the discussion in relation to questions 1 and 2 above that in case a suit is dismissed or defence is struck off in terms of Section 35B, only on account of non-payment of costs, the aggrieved party can apply to the Court under Section 151, C.P.C. for recalling the orders, if it can show sufficient cause for non-payment of the costs imposed. Every Court has the power to recall or review its orders. In the absence of any express provision in this behalf, the power can also be derived from Section 151, C.P.C. The Madhya Pradesh High Court rightly held that Order 9 Rule 9, C.P.C. would not be applicable in such a case. This, however, does not mean that the party is left without remedy. The Court has the inherent power to recall its earlier order.

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 27.06.2008

Piaro Devi Vs. Anant Ram and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: MANU/HP/0122/2008,AIR 2008 HP 107

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Can the appellate court permit the production of additional evidence at a belated stage that would result in a retrial of the accused or a change in the nature of the case against the accused?

4(i) Section 391 Cr.P.C gives out power to the Appellate Court to take further evidence in following manner:-

“391. Appellate Court may take further evidence or direct it to be taken-(1) In dealing with any appeal under this Chapter, the

Appellate Court, if it thinks additional evidence to be necessary,

shall record its reasons and may either take such evidence itself,

or direct it to be taken a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

4(ii) In (2019) 16 SCC 712 [Brigadier Sukhjeet Singh

(Retired) MVC Vs. State of Uttar Pradesh & Ors], the Hon’ble Apex

Court held that the key words in Section 391(1) are “if it thinks

additional evidence to be necessary”. The word “necessary” used in

Section 391(1) is to mean necessary for deciding the appeal. Power

to take additional evidence under Section 391 Cr.P.C. is with the

object of appropriate decision of the appeal by the appellate Court to

secure ends of justice. The Hon’ble Apex Court noted the decision

rendered in (2001) 4 SCC 759 (Rambhau Vs. State of

Maharashtra), wherein a word of caution was introduced for

guidance “that additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the caseagainst the accused. The order for adducing additional evidence must not ordinarily be made, if the prosecution has had a fair opportunity and has not availed of it. It was further held that there is no fetter on the power under Section 391 Cr.P.C of the Appellate Court. All powers are conferred on the Court to secure the ends of justice. While allowing the application moved under Section 391 Cr.P.C. by the accused in that case, Hon’ble Apex Court further held that it depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not. It would also be apt to refer 2019(3) SLC 1354 (Jagdeep Kumar Vs. Himachal Pradesh State Cooperative BankLimited), wherein observations were made that Section 391 Cr.P.C. is not intended to remedy the negligence or laches of the party.

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA

Cr.MMO No. 73/2023

Decided on: 11.04.2023

Kewal Krishan  Vs   State of H.P. & Ors.

Coram

Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Citation: 2023 Lawweb (HP ) 2.

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Can an appeal be filed if the right to appeal is granted after the case is filed?

Section 26 of Amendment Act No. 3 of 2016 clearly

made the amendments incorporated in the principal Act

prospective in nature and would apply only to those arbitration

and court proceedings, which have commenced after coming

into force of Act No.3 of 2016 w.e.f. 23.10.2015.

13. The question, thus, arises whether for the purpose of

present appeal, the court proceedings will be taken to have

commenced on 10.07.2015 i.e. on the date of filing of

application under Section 8 of 1996 Act or on the date, when

impugned order was passed?

14. In our considered view, there is no escape from the

conclusion that the date of commencement of court

proceedings, in the instant case shall be 10.07.2015 when the

application under Section 8 of 1996 Act was filed by the

appellant/defendant in Civil Suit No.16 of 2015, for the reason

that the appeal is continuation of original proceedings.

Reference in this regard can be made to para-13 of the

judgement passed by Hon'ble Supreme Court in Malluru

Mallappa (dead) through Legal representatives vs.

Kuruvathappa and others, reported in (2020)4 SCC 313, which

read as under:-

“14. It is a settled position of law that an appeal

is a continuation of the proceedings of the original

court. Ordinarily, the appellate jurisdiction involves

a re-hearing on law as well as on fact and is invoked

by an aggrieved person. 

15. Viewed from another angle, there is no difficulty to

uphold the contention of respondents/plaintiffs as the appeal is

a right created by a statute. Section 37(1)(a) was incorporated in

the principal Act w.e.f. 25.10.2015, meaning thereby that before

the said date no right existed to file an appeal against the order

refusing to refer the parties to arbitration under Section 8 of the

1996 Act.

16. In view of the interpretation provided to Section 26

of the Amendment Act 6 of 2016 by the Hon'ble Supreme Court

in Kochi Cricket's case (supra) , the appellant/defendant had

no right to file an appeal at the time of commencement of court

proceedings on 10.07.2015.

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Arbitration Appeal No. 10 of 2016.

Graviss Foods Private Limited  Vs  M/s Ice Cream Garden & Anr. 

Coram:

 Ms. Justice Sabina, Acting Chief Justice.

 Mr. Justice Satyen Vaidya, Judge.

Author: Satyen Vaidya, Judge.

Date of Decision : 12 th April, 2023.

Citation: 2023 Lawweb (HP ) 1.

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HP HC: Margin of error in age ascertained by ossification test can be plus 3 years

Further, the ossification test shows that the age of the prosecutrix was 15½ years at the time of the incidence, so applying the principle of plus three it can safely be taken as 18 years, especially when Modi's Medical Jurisprudence and Toxicology says that plus three can be given in normal circumstances, considering extreme climatic conditions, viz., place of living and other circumstances. In the case in hand, the prosecutrix has grown up in extreme climatic conditions and the available record shows that she was more than 15½ years of age at the time of the incidence, thus applying the well accepted method of Modi's Medical Jurisprudence and Toxicology her age can be more than 18 years. Thus, the prosecution has failed to establish that at the time of the incidence the prosecutrix was below 18 years of age.

 In the High Court of Himachal Pradesh at Shimla

(Before Chander Bhusan Barowalia, J.)

Aneep Kumar Vs  State of Himachal Pradesh 

Cr. Appeal No. 99 of 2010

Decided on September 11, 2017,

Citation: 2017 SCC OnLine HP 1528

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Whether court should grant bail to a foreign national, who is unable to furnish local surety?

 In LachhmanDass v. Resham Chand Kaler, (2018) 3 SCC 187, (Para 10), Hon'ble Supreme Court held that the law under section 439CrPC is very clear and in the eye of the law every accused is the same irrespective of their nationality.{Para 11}

15. In Shokhista v. State, 2005 LawSuit (Del) 1316, Delhi High Court observed,

5. …The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I.T.P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so. Consequently, I admit the Petitioner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the satisfaction of the Trial Court. The Petitioner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court.

16. Given the above reasoning, coupled with the peculiar facts and circumstances of the case, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

 In the High Court of Himachal Pradesh at Shimla

(Before Anoop Chitkara, J.)

Collins Vs  State of H.P.

Cr.M.P. (M) No. 254 of 2021

Decided on April 27, 2021,

Citation: 2021 SCC OnLine HP 787

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Whether court can enhance permanent alimony if the court fixed it with the consent of parties?

  At the outset, learned counsel for the non-applicant/  respondent questioned the very maintainability of this application on the ground that since the judgment dated 19.11.2001, passed in FAO (HMA) No. 50 of 2001, was on the basis of the compromise, therefore, the instant application for enhancement was not maintainable. Learned counsel for the non-applicant/respondent further argues that the applicant by her own act and conduct is estopped from filing the present application and the previous decision rendered by this Court operates as res judicata. {Para 11}

12. Both these submissions of the learned counsel for the

non-applicant/respondent are not at all tenable in view of the

judgment rendered by a Coordinate Bench of this Court in Kubja

Devi vs. Ishwar Dass AIR 2017 HP 21, wherein it was held that

where the maintenance is fixed by a Court though the basis of it was an agreement, it would come directly under Section 25 of the Act. Thus, a party will be entitled to have an enhancement of

maintenance once such party proves that there has been a material change in the circumstances justifying the enhancement. Therefore, even if agreement relating to the quantum may be a part of the settlement but when the decree passed on adopting the said settlement it becomes the order under Section 25(1) of the Act, as such the Court has statutory jurisdiction under Section 25(2) to direct enhancement of the maintenance with changed circumstances. It was further held that neither the provisions of Section 11 of the CPC nor the principles of res judicata will bar a suit of maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree has been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final.

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMP No. 8958 of 2019 in FAO (HMA) No. 50 of 2001

Smt. Beasa Devi Vs  Sh. Shiv Dayal 

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Decided on 28.04.2021

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Whether the execution of the Muslim will is proved if propounder of will fails to examine scribe of will?

 While a Mohammedan Will is required to be proved under Section 67 of the Evidence Act, 1872, a Will governed by the provisions contained in Part VI of the Indian Succession Act, 1925, is required to be proved as laid down under Section 68 of the Evidence Act, 1872. Therefore, the validity of the will in question Exhibit DW-2/A is required to be examined under the provisions of Section 67 of the Evidence Act.

10. Section 67 of the Evidence Act, reads as under:-

“67. Proof of signature and handwriting of person alleged to have

signed or written document produced.- If a document is alleged to be

signed or to have been written wholly or in part by any person, the

signature or the handwriting of so much of the document as is

alleged to be in that person’s handwriting must be proved to be in his

handwriting.”

11. Where the document is written by one person and signed

by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to is the signature of a witness who counter signs a document as a person who was present at the time when the document was signed by another person. This was so held by the learned Division Bench of the Gujarat High Court in Miyana Hasan Abdulla and another vs. State of Gujarat AIR 1962 Gujarat 214 and I see no reason to take a different view.

12. In such circumstances, obviously no exception can be

taken to this part of the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission. The non-examination of the scribe assumes importance because the witness Lovender Singh DW-2 does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.

Substantial questions of law are answered accordingly.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 623 of 2008 a/w

RSA No. 624 of 2008

Date of decision: 20.4.2021

RSA No. 623 of 2008

Ashiq Ali (deceased) through his LRs  Vs  Yasin Mistri (deceased) through his LRs 

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Date of decision: 20.4.2021

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Whether an employee who retired on 31st of a month is entitled to the increment which would have fallen due on 1st of the next month?

The petitioner was not on duty on 1.4.2003. Increment can be drawn only when an employee is on duty. The increment in terms of FR 24 & 26 did not become due during the period of service of the petitioner. Therefore, increment on 1.4.2003 cannot be sanctioned in favour of petitioner on the ground that he had completed twelve months of continuous service. The date of increment falls due on the first day of the succeeding month after the retirement. Petitioner retired on the basic pay drawn by him on 31.3.2003 i.e. his date of retirement. His pension has to be determined accordingly. Petitioner had become a pensioner on 1.04.2003. He cannot be held entitled to any increment which may fall due post his retirement. He is entitled only to those increments which fall due to him during the period of his service.

 In the High Court of Himachal Pradesh, Shimla

(Before Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ.)

CWP No 2503 of 2016

Hari Prakash Vs State of Himachal Pradesh

CWP No. 2503 of 2016 a/w CWPOA No. 663 of 2020

Decided on November 6, 2020, 

Citation: 2020 SCC OnLine HP 2362

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Whether court should refuse to grant anticipatory bail to husband for offence U/S 498A of IPC if he uploads a nude picture of his wife on the internet?

Not only this the husband of the victim had also uploaded

nude photographs of the victim on facebook through fake facebook ID

created by him in the name of victim and had also uploaded nude

photographs of the victim as profile picture of that facebook ID and

after taking screen shots thereof had sent photographs to the victim

and had also uploaded videos and photographs wherein victim was

nude. During investigation, 16 such screen shots have been produced

before the police which were uploaded by the husband of the victim.

16. Relationship of husband and wife is a privileged relation.

Institution of marriage inspires trust and confidence which leads to

complete surrender of spouses to each other. This relation of mutual

trust, faith and confidence creates sense of security and sometimes

even more than parents and children. Sometime spouse feels more

secured in shelter of life partner than mother’s lap. Such feeling

inspires openness between husband and wife.

17. Posting and uploading nude photographs of spouse,

particularly of wife, in public domain amounts to betray the mutual

trust and confidence which marital relations implies. It is stripping off

a woman in public by the husband himself who is not only supposed

but duly bound to protect her, it is not only serious but a heinous

crime. It’s impact on soul, mind and health of the victim is beyond

imagination. It causes suffering to her beyond comprehension,

attracting the provision of Section 498-A IPC. An act amounting to

stripping off a woman in public, in my considered view dis-entitles a

person from anticipatory bail.

18. I am of the considered view that extraordinary provision

of Section 438 Cr.P.C, conferring discretion upon the Court to direct

enlargement of a person on bail before his arrest, in the event of his

arrest, is not framed to benefit such offenders particularly a husband

who is accused of an offence amounting to stripping off his wife in

public. Therefore, considering the given facts and circumstances of

the case, nature and gravity of the accusations and impact thereof on

the soul, mind and body of a woman, affecting her mental and

physical health beyond comprehension, I do not find it fit to enlarge

petitioner Abhishek Mangla on bail, exercising the power under

Section 438 Cr.P.C. Hence, bail petition [Cr.M.P(M) No. 1808 of 2020]

preferred by him is dismissed.

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) Nos. 1808 to 1811 of

2020

Decided on: 27.10.2020

Cr.M.P(M) No. 1808 of 2020

Abhishek Mangla Vs State of H.P. 

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

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Whether the property will remain ancestral property if the husband has given property to wife by executing will?

This Court finds no merit in the aforesaid submission of learned Counsel appearing for the plaintiffs because bare perusal of copies of Jamabandis for the years 1982-93 and 2010-2011, reveal that part of suit land comprising of Khasra No. 454, 455, 456, 457, 458, 459 and 460 was owned and possessed by Prema, husband of defendant No. 1 and same subsequently came to be inherited by defendant No. 1, Lajwanti. Perusal of Jamabandis as referred to above, further reveals that land comprised in Khasra Nos. 399 and 400 was jointly owned and possessed by defendant No. 1 alongwith others. As per recital in the Will dated 2.7.1997, placed on record by plaintiffs, late Prema was having one daughter and four sons, besides his wife and he had executed Will since his sons were not serving him and his wife. He bequeathed entire property in favour of his wife, who, after having become absolute owner of the part of suit land, transferred the same to defendants Nos. 3 and 4, for considerations of Rs. 30.00 Lakh and Rs. 10.00 Lakh, respectively. No material worth credence has been placed on record by plaintiffs suggestive of the fact that husband of defendant No. 1, Prema, had inherited suit land from his ancestors but even if it is assumed that suit land was ancestral in the hands of late Prema, it lost character of ancestral property after having been inherited by defendant No. 1 from Prema by way of Will. There is no dispute that plaintiffs have not challenged Will in the present case and as such, they have no right, title or interest over the same.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 346 of 2020

Decided On: 28.09.2020

Kishori Lal  Vs.  Lajwanti and Ors.

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: MANU/HP/0897/2020

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