Whether land acquisition shall be deemed to have been lapsed if authorities can not take possession of the acquired land due to pending litigation?

366.3. The word "or" used in Section 24(2) between possession and compensation has to be read as "nor" or as "and". The deemed lapse of land acquisition proceedings Under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8197 of 2022 

Decided On: 02.12.2022

 Land Acquisition Collector (South), New Delhi and Ors.Vs.  Suresh B. Kapur and Ors.

Hon'ble Judges/Coram:

M.R. Shah and M.M. Sundresh, JJ.

Author: M.R. Shah, J.

Citation: MANU/SC/1562/2022

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Good article on Construction Law- Assessment of damages due to delay in construction Part 2

Submitted by  

A.MOHAMMED IBRAHIM FICA

https://drive.google.com/file/d/1ruDposbAFGVMlQYLDt-y7jO9sVk9XuaE/view?usp=sharing

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Whether purchaser pendente lite can put evidence on record to prove that he was unaware of pendency of litigation?

The learned senior counsel appearing for the

petitioners was not justified in contending that even if it

was to be held that there was a presumption against

the petitioners about being aware of the litigation

initiated by respondent nos. 1 and 2 before a competent

Court, such a presumption was rebuttable and that if the

view taken by the Executing Court was accepted,

Section 19(b) of the Specific Relief Act, 1963 would be

rendered otiose. A proper reading of the judgments of

the Hon’ble Supreme Court in the case of Usha

Sinha .vs. Dina Ram (supra) and Silverline Forum

Pvt. Ltd. .vs. Rajiv Trust (supra) would show that a

presumption referred to therein is not a presumption in

the sense of it being rebuttable, but a situation where a

transferee who purchases property during the pendency

of the suit, is deemed to be aware of a litigation

pertaining to the said property pending before the

competent Court. Such a transferee , cannot claim a

right to show evidence that he was actually not aware or

put to notice about pendency of such a litigation. In

fact, Rules 98 and 100 of Order 21 as amended by the

Bombay Amendment, addressed this very mischief that

can be indulged in by transferees pendente lite.

Therefore, the petitioners cannot claim that they had a

right at least to place on record evidence to show that

they were actually not aware about the pendency of the

litigation, even if they had purchased the property

during the pendency of the suit filed by respondent nos.

1 and 2 or that there was a rebuttal presumption that

arose in the present matter. Similarly, the petitioners

are not entitled to claim that Section 19(b) of the

Specific Relief Act, 1963 would be rendered otiose,

because they cannot be said to be transferees who paid

money in good faith and without notice of the original

contract, because they were deemed to be aware of the

same as they had purchased the property during the

pendency of the suit filed by respondent nos. 1 and 2.

Therefore, there is no substance in the contentions

raised on behalf of the petitioners.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

Writ Petition No.4406 OF 2018

(M/s Sharma Construction Company, Nagpur vs. Praveenkumar Lilapat Bansal and others. )

CORAM : MANISH PITALE, J.

DATED : APRIL 10, 2019
Citation: 2019(5) MHLJ 499

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Whether litigation should be terminated by default either of plaintiff or defendant?

 Counsel for the appellant would submit that the property is the residential property. It is much more valuable than the amount shown in the agreement. The transaction was essentially a loan transaction and opportunity must be given to contest the matter on merits.

6. Per contra, the learned Counsel for the decree holder would submit that ample opportunity was given to the appellant, and in spite of the same, he has not contested the matter. Appellant has another residential building. The building in question was let out on rent.

7. Most importantly, the learned Counsel submits that after levying execution of the decree, the property has been conveyed to the respondent by the orders of the Court. In other words, sale deed has

already been executed in her favour. It is respondent’s case that appellant was served notice by the executing court. There is no scope for interfering with the matter by this Court.

8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4507 OF 2019

ROBIN THAPA Vs  ROHIT DORA

K.M. JOSEPH, J.

Dated:July 08, 2019.

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Whether legal representatives who are impleaded alone are entitled to inherit entire subject matter of litigation?

 I am also of the view that if in a suit a few persons are impleaded as legal representatives, it does not mean that they alone are entitled to inherit the entire subject-matter of the litigation. The legal representatives are brought on record to represent the estate of the deceased. The question of inheritance is not decided and it is only a question of representation of estate which is decided under Order 22 of the CPC. Therefore, a person who represents the estate acts on behalf of the entire body of people who inherit the estate. As such, when after the death of Smt. Rajeshwari Rani Pathak, Dr. S.K. Sharma was impleaded as her legal representative, he represented the estate of the deceased late Smt. Rajeshwari Rani Pathak and it was not decided that he was the sole heir.

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 17.05.2007

State of H.P. Vs. Smt. Annapurna Pathak and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: AIR 2007 HP 88

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Whether court permit production of pleadings of earlier litigation as additional evidence?

What has been held in the aforesaid judgments is that if the court finds that the documents sought to be produced in additional evidence are relevant to decide the real issue in controversy and further the court feels that interest of justice requires that the documents may be received and the kinds of documents are such, the authenticity of which cannot be disputed, the same may be allowed to be produced in additional evidence. If the facts of the present case are considered in the light of the judgments, referred to above, the documents sought to be produced by the petitioner by way of additional evidence are none else but the pleadings in the earlier litigation pertaining to the same subject-matter. There is no chance of its fabrication at this stage.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 7 of 2009 (O&M)

Decided On: 10.01.2012

 Ram Niwas Vs.  Kalu Ram and another

Hon'ble Judges/Coram:

Rajesh Bindal, J.

Citation: (2012) ILR P&H 63

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Basic concept of doctrine of Res judicata

 Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Edn., p. 243, wherein it is stated:

"One special variety of estoppel is res judicata. This results from the rule, which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another, they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as „cause of action estoppel‟ and „issue estoppel‟."

(iii) Swamy Atmananda and Ors. vs. Sri Ramakrishna Tapovanam and Ors., (2005) 10 SCC 51, wherein it was observed as follows:- (SCC, at page 61, para 26) "26. The object and purport of principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject- matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment."

(iv) M. Nagabhushana vs. State of Karnataka and Others, (2011) 3 SCC 408, wherein the principles of res judicata were delineated as under:- (SCC, at pages 415-416, paras 12 and 13) "12. The principles of res judicata are of universal application as they are based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of res judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

13.That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.

Delhi High Court

Union Of India vs Videocon Industries Ltd. on 5 March, 2012

Author: Reva Khetrapal

Read full judgment here: Click here

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Whether it is duty of court to protect wife against burden of litigating in an inconvenient forum?

We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington (1) which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.

Supreme Court of India

Smt. Surindar Kaur Sandhu vs Harbax Singh Sandhu & Anr on 11 April, 1984

Equivalent citations: 1984 AIR 1224, 1984 SCR (3) 422

Bench: Chandrachud, Y.V. ((Cj)

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Whether it is necessary to maintain status quo of property during pendency of litigation?

The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.57 of 2014

Maharashtra State Board of Wakf,

V
Digvijay S/o Deeliprao Deshmukh,

 CORAM: T.V. NALAWADE, J.

 DATE : 3rd MAY 2014

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Whether recitals in judgment can be used as evidence in litigation?

 The recitals in the judgment cannot be used as evidence in a litigation between other parties. The principle is that all judgments are conclusive of their existence, as distinguished from their truth; judgments as public transactions of a solemn nature, are presumed to be faithfully recorded. Every judgment is, therefore conclusive evidence, for or against all persons, whether parties, privies or strangers, of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered: in other words, the law attributes unerring verity to the substantive as opposed to the judicial portion of the record.

Bombay High Court

Gulabrao Maruti Bhagat vs Bhagwan Nana Bhagat on 8 December, 2000

Equivalent citations: 2001 (3) BomCR 484

Bench: D Chandrachud

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What are Basic principles for conduct of writ litigation?

On the basis of said Supreme Court judgments, following principles may be culled out:-

1. A writ remedy is an equitable one. While exercising extraordinary power a Writ Court certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court.

2. Litigant before the Writ Court must come with clean hands, clean heart, clean mind and clean objective. He should disclose all facts without suppressing anything. Litigant cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back)/ conceal other facts.

3. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or mis representation which has no place in equitable and prerogative jurisdiction.

4. If litigant does not disclose all the material facts fairly and truly or states them in a distorted manner and misleads the Court, the Court has inherent R.P.No.161/2015 (Central Ware House & Ano. v. Union of India & Ano.) power to refuse to proceed further with the examination of the case on merits. If Court does not reject the petition on that ground, the Court would be failing in its duty.

5. Such a litigant requires to be dealt with for Contempt of Court for abusing the process of the Court.

6. There is a compelling need to take a serious view in such matters to ensure purity and grace in the administration of justice.

7. The litigation in the Court of law is not a game of chess. The Court is bound to see the conduct of party who is invoking such jurisdiction.

Madhya Pradesh High Court

Gwalior bench

Central Warehouse Thr vs Union Of India Thr on 11 May, 2015

R.P.No.161/2015

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When negligence of advocate amounts to negligence of litigant?

 In the instant case, the statement that in spite of being duly instructed, the learned Advocate on record did not incorporate the pleading as sought to be raised is the only justification for not raising the plea earlier. However, it cannot be taken to answer the test of "due diligence" as required by the proviso under Rule 17, Order 6, Civil Procedure Code. The proviso contemplates parties to exercise due care and caution in raising the matter before the Court and once trial commenced, no new or additional plea can be permitted to be raised unless the party shows that with all diligence at its command, it could not raise it before commencement of the trial. The due diligence prescribed by the proviso is of the parties and of nobody else including the Advocate on record. If Counsel of the party refuses to take up certain pleas wished by his client to be taken up, the least and perhaps the only thing the client can do to get his wish fulfilled is to go to another counsel who will pay heed to him or else accept the judgment of his counsel for good. If he adopts the latter course, he cannot say later on, almost as an afterthought and by way of repentance, that although he toiled hard, he could not raise the plea earlier due to the stand taken by his earlier counsel. If a party chooses to accept the advice of Advocate "completely believing in him and his extra ordinary experience" as mentioned in the petitioner's amendment application in the present suit, instead of going to another Advocate well in time, he cannot be heard to say and imply that he was diligent when he "duly instructed" the Advocate but was helpless when his Advocate refused to follow the particular instructions. Due diligence contemplated by the said proviso is something akin to situation of helplessness or of things, beyond one's own control. Such is not the case here. A party always has the choice of Advocates.

13. A party can of course say, he being not a legal expert, would not know immediately that decision of his Advocate is not sound and so he would not be in a position to promptly exercise his choice of Advocates and would be able to do so only after passage of some time, when he would learn or be told about the incorrectness of approach of his Advocate. Even this justification, in my opinion, cannot answer the test of due diligence. The reason being that a representative or Advocate and the party being represented in a case are not two separate identities in that case, so far as conduct of the case is concerned. Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is with the approval, express or assumed, of the party. In other words, all actions taken before the Court by an Advocate, are the actions of the party. So, there is no splitting of concept of due diligence, one of the party and the other of the Advocate, so as to enable the party to be excused for negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground, it may provide an effective tool to the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17, Order 6, Civil Procedure Code. All that he would have to do is change the Advocate blaming it on the previous Advocate.
Civil - Written statement - Amendment of - Present petition filed against order whereby, Petitioners' application for amendment of their written statement, was rejected - Whether Petitioners were entitled to amend their written statement - Held, Petitioners failed to prove that amendments were necessary for deciding real controversy involved in case - Nothing on record to show that it could not had been incorporated by Petitioners in written statement earlier in spite of due diligence on their part - All actions taken before Court by Advocate, were actions of party - Thus, Petitioners could not take plea that Advocate had not introduced his pleadings before filing their written statement - Therefore, Petitioners were not entitled to amend their written statement - Petition dismissed.

IN THE HIGH COURT OF BOMBAY AT GOA.

WRIT PETITION NO. 625 OF 2013.

 Mr. Conception Fernandes,V/s Mrs. Tasneem Shaikh,

Coram:-S. B. SHUKRE, J.

Pronounced on:-11th April, 2014.

Citation: 2014(5)ALLMR751, 2014(6)BomCR179, 2014(5)MhLj494

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Supreme Court: Principle of Res judicata is not applicable between the two stages of the same litigation unless there is an adjudication on merits

From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation. 

Supreme Court of India

Erach Boman Khavar vs Tukaram Sridhar Bhat & Ors. on 12 December, 2013

Citation;AIR 2014 SC 544

Dipak Misra, J.

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How to obtain settlement by excellent trial preparation?

Choreography is the art of making dances. The choreographer arranges movement, lights, and sound in a deliberate manner to convey a concept, set a mood, or tell a story.

Trial preparation is like a choreography in that it is a deliberate arrangement of elements to convey a concept and tell a story from a particular point of view. Both choreography and trial practice rely on the skill of a performer, either a dancer or litigator, to effectively communicate with an audience or a hearing officer.

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Metadata of Digital photograph-its uses in litigation

We are hopeful that you are familiar with metadata, especially as it exists in e-mail messages and word processing files. If not, then a brief refresher is in order. There are a couple of different types of metadata, but most regard the common definition to be data that is stored internal to the file (you can’t see it without knowing how to look at it) and is not explicitly defined by the user. The application (e.g., word processor) inserts data within the file such as the author, last time printed, fonts used, or creation date. But what about image files such as those taken with digital cameras? What metadata do those files contain? Digital photos can be an electronic evidence heaven.

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The “magic” of reverse image searches can help IP litigators protect their clients from copyright infringement.

Intellectual-property litigators are now using online tools and research databases more and more to assist in efficiently advising their clients. While many lawyers use Google for finding information, not many know that they can use Google to do a “reverse image search” to assist their clients in preliminary consultation regarding similarity of such visual intellectual property (trademarks and copyrights) to other already existing images on the Internet. With this free technology, instead of inputting search terms to find images online, users may upload images or pull images from other websites and see what other online images are similar.

How Does It Work?
There are several reverse image search engines available with their own search algorithms, unique layouts, and target demographics. Examples are TinEye, Byo Image Search, GazoPa, RevIMG, IM2GPS, Idée, Google Images, and imgSeek, and SnapTell, which was acquired by Amazon in 2009. Without a doubt, however, the most popular options are Google Images and TinEye. Even though Google Images arrived on the reverse image search scene rather late (debuting only last year), the strength of its database of images has quickly made it the search engine of choice for reverse searches.

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