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goods damaged in transit = compensation = consumer foram=”……Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”
1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3546 OF 2006 M/s Nagpur Golden Transport Company (Regd.) … Appellant Versus M/s Nath Traders & Ors. … Respondents J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave under … Continue reading
specific performance=the difference between earnest money – part of consideration=Mr. Misra submitted that the Corporation had no right to forfeit the amount of Rs.8,00,000/- (Rupees Eight Lacs) paid by the respondents as part consideration for the sale of the Unit and at best they could forfeit the earnest money of Rs.50,000/- (Rupees Fifty Thousand) paid by the respondents while making the offer to purchase the Unit. There is no substance at all in the submission. The question of forfeiture of the earnest money would have arisen in case the parties had not acted upon in furtherance of the sale letter but the matter in this case went much beyond that stage. The parties agreed for the sale of Unit for an amount of Rs.40,00,000/- (Rupees Forty Lacs) out of which the respondents were required to make a down payment of Rs.8,00,000/- (Rupees Eight Lacs), which they did. On payment of the part consideration money, the possession of the Unit was made over to them. The respondents were, thus, under the legal obligation to pay the balance consideration of Rs.32,00,000/- (Rupees Thirty Two Lacs) in instalments and along with interest, as stipulated in the letter. The Corporation had, therefore, not only the right to retain Rs.8,00,000/- (Rupees Eight Lacs) paid to it as part consideration but also to realise the balance amount of consideration, in accordance with law.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1850 OF 2007 M/S. INDUSTRIAL PROMOTION AND INVESTMENT CORPORATION OF ORISSA LIMITED … APPELLANT VERSUS M/S. TUOBRO FURGUSON STEELS PRIVATE LIMITED & OTHERS … RESPONDENTS J U D G M E N T Aftab Alam, J. 1. This appeal, at the instance of … Continue reading
“An individual, who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous service. In exceptional cases, however, he may, at the discretion of the President be granted service pension or gratuity at a rate not exceeding that for which he would have otherwise qualified had be been discharged on the same date.” Regulation 113(a) is clear that an individual, who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of all previous
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4523 OF 2006 Shish Ram … Appellant Versus Union of India & Ors. … Respondents J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave under Article 136 of the Constitution … Continue reading
Bank/Banking – Loan waiver scheme – Indebtedness and inability of Respondent-borrowers in the State of Jammu and Kashmir to repay loan amount due to continuous militant activities in the State – Amounts borrowed less than Rs. 10,000/- – Debt Relief Scheme floated by Government for borrowers in the State – Scheme provided for waiver of bank loans upto Rs.50,000/- – Liberal interpretation of the scheme by Courts below and consequent dismissal of suits filed by Appellant-banks against Respondent-borrowers – Justification of – Held: Justified, considering the peculiar facts and circumstances of the case and in light of the various clauses in the Scheme itself and also in view of the fact that sub-clause (a) of Section 3 of the scheme provided for reimbursement of waived loan to the concerned banks. Respondents belong to the State of Jammu & Kashmir. They obtained loans upto Rs.10,000/- from Appellant-Banks for rearing of sheep and buffaloes and for establishing dairy units. The loans remained unpaid on which, the Appellant-banks filed suits against the Respondents. During pendency of the said suits, the Government framed a Debt Relief Scheme for borrowers in the State of Jammu & Kashmir to give them relief considering the continued militancy and other difficulties in the State during the relevant time. The scheme provided for waiver of bank loans taken by borrowers in the State upto Rs.50,000/- for purpose of their business activities. Taking suo motu notice of the said Scheme, the Courts below held that the loans obtained by Respondents could be presumed to be for trade purpose and after applying the said scheme, dismissed the suits filed by Respondents. The questions which arose for consideration in the present appeals were as to i) whether the loan obtained by Respondents for purchasing sheep and buffalos and for establishing dairy units was covered by the said Scheme and ii) whether, in absence of a specific plea by the Respondents, the High Court was justified in granting relief in terms of the said Scheme. =Dismissing the appeal, the Court HELD:1.1. The Debt Relief Scheme in question applies to borrowers in the State of Jammu & Kashmir who borrowed loan amount for the purpose of their business activities. Business activities have not been specifically defined in the scheme. Sub-clause (i) of clause 2(d) of the Scheme refers certain examples viz., tourism, transport, small scale industry, trade sector, hotel, house-boat business, retail trade, etc.. Though purchase of buffalos and sheep relates to agriculture and allied activities, it cannot be denied that from the buffalos, the borrower can establish a dairy unit and earn from the said business. In view of clause 2(d)(i), the word “etc.” in the definition of “eligible loans” connotes that besides the activities cited as example for business activity there are other business activities which could be included under the Scheme. The said liberal interpretation cannot be ruled out particularly, when the Debt Relief Scheme was introduced mainly as a relief to the borrowers in the militant dominated State during the relevant time. Following the very reason for introduction of the said Scheme i.e. to offer financial help to the poor and indebted borrowers of militancy hit Jammu & Kashmir, the Courts below rightly concluded that the agricultural and allied business activities viz., the types of trade/business which are substantially or partially depending on agriculture and/or agricultural produce as a business activity under the said Scheme. Further, the Reserve Bank of India Guidelines cannot be strictly followed as it has not been mentioned to be followed in the Scheme and, therefore, the term `business activity’ cannot be interpreted under the strict rule of interpretation. [Paras 9, 10, 13] [1045,C-D; 1045,E-G; 1047,D-E] 1.2. Besides, sub-clause (a) of Section 3 of the Scheme makes it clear that the amount waived off will be reimbursed to the concerned Bank/Financial Institution by the Department of Jammu & Kashmir Affairs, Government of India on recommendation of the Committee to be set up at the State Level. Even after the orders passed by the sub-Court and thereafter by the District Court, the Banks could have availed the benefit of reimbursement as provided under clause 3(a) of the Scheme. However, the appellant-Banks instead of availing the same, agitated the matter up to the level of this Court by spending more money for recovery of petty amounts from the small borrowers. The appellant-Banks are free to approach the Department of Jammu & Kashmir Affairs, Government of India who brought the Debt Relief Scheme, under clause 3(a) for reimbursement, if the same is permissible, at this juncture for which no opinion is expressed by this Court. [Para 14] [1047,H; 1048,A-C] 2. As regards the contention that in absence of a specific plea in the form of written statement or counter affidavit, the Court should not have given relief applying the said scheme, it is true that all the respondents were served by publication in the daily newspapers and in most of the cases, the amount borrowed was less than Rs.10,000/-, which may be one of the reason, the respondents failed to contest the suit. In those circumstances when the Government of India itself with the assistance of the State of Jammu & Kashmir brought a Scheme called “Debt Relief Scheme” and the same was available on the date when all the suits were pending, considering the special circumstances, the course adopted by the Courts below cannot be faulted with. [Para 11] [1046,A-D] 3. Considering all the peculiar aspects of the present case, particularly, indebtedness and inability to repay the loan amount by the borrowers due to continuous militant activities in the State of Jammu & Kashmir particularly, at the relevant time, the amounts borrowed which were less than Rs. 10,000/- in most of the cases, liberal interpretation of the Courts below in the light of the various clauses in the Scheme itself and also of the fact that sub-clause (a) of Section 3 of the scheme provides reimbursement of waived loan amounts, this Court is not inclined to interfere with the orders of the Courts below. [Para 15] [1048,D-E] Raju Ramachandran, G.M. Kawoosa and N. Ganpathy for the Appellant. S. Mehdi Imam and Anis Suhrawardy for the Respondents.=, 2008(12 )SCR1035, , 2008(12 )SCALE117 , 2008(9 )JT473
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4817-4851 OF 2002 Jammu Rural Bank …. Appellant(s) Versus Mohd. Din & Ors. …. Respondent(s) WITH CIVIL APPEAL NOS. 4852-4854 OF 2002 AND CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No. 4901 of 2006) JUDGMENT P. Sathasivam, J. 1) Civil … Continue reading
service matter – departmental exams for promotion =We, therefore, set aside the impugned judgment and order and hold that the appellant is entitled to weightage of three (3) marks while considering him for promotion to the Bank Officer’s Cadre in Officer’s Grade examination held in 1982 in view of the fact that he possessed Post Graduate Diploma in Office Organization and Procedures from Punjab University, Chandigarh, which is a recognized University. The appeal is allowed.
NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9708 OF 2011 [ARISING OUT OF SLP (CIVIL) NO.1921 OF 2010] PREM PARKASH PAHWA … APPELLANT Versus UNITED COMMERCIAL BANK & ANR. … RESPONDENTS JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Delay condoned. 2. Leave granted. 3. This appeal, by grant of … Continue reading
Hindu Adoption & Maintenance Act, 1956 – ss. 3 and 18 – Maintenance – Right of wife to reside in matrimonial home – Wife and children residing in the suit property – Decree for possession of suit property in favour of husband – Challenge to, by wife on the ground that she already obtained charged decree for maintenance over suit property – Dismissed by High Court holding that wife could not claim right of residence in matrimonial home so as to resist decree for possession – On appeal, held: Supreme Court in Mangat Mal’s and B.P. Achala Anand’s cases examined the question as to whether maintenance encompasses provision for residence – Matter remitted to High Court to consider the issues in the light of the ratio of aforesaid cases – Transfer of Property Act, 1882 – s. 39. The relationship between the respondent no. 1-husband and the appellant- wife were estranged. Respondent no. 1 filed suit for declaration of title and recovery of possession in respect of Schedule property where appellant and respondent no. 2 and 3-children were residing. Trial court and the First Appellate Court decreed the suit in favour of respondent no. 1. Appellant filed second appeal on the ground that she had right to reside in the matrimonial home situated in the Scheduled property and that she had already obtained charged decree for maintenance over the Schedule property. High Court dismissed the appeal holding that the wife could not claim a right of residence in the matrimonial home so as to resist a decree for possession. Hence the present appeal. =Disposing of the appeal, the Court HELD:1.1. Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady`s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purpose of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract s. 14 (1) of the Hindu Succession Act, 1956. [Para 9] [80-C-D-E] 1.2. The Hindu Adoption & Maintenance Act, 1956, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3 (d) to include “(1) In all cases, provision for food, clothing, residence, education and medical attendance and treatment.” [Para 11] [81-G] 1.3. The High Court did not consider the aspect whether maintenance encompasses a provision for residence as considered in Mangat Mal’s and B.P. Achala Anand’s cases. It will be appropriate for the High Court to consider the issues by re-hearing the appeal in the light of what has been stated in Mangat Mal’s and B.P. Achala Anand’s cases. [Para 13] [82-F] Mangat Mal (Dead) and Anr. vs. Punni Devi (Dead) and Ors. 1995 (6) SCC 88 and B.P. Achala Anand vs. S. Appi Reddy and Anr. 2005 (2) SCALE 105, referred to. Mulla’s Hindu Law (Sixteenth Edition), referred to. Case Law Reference: 1995 (6) SCC 88 Referred to. Para 6 2005 (2) SCALE 105 Referred to. Para 12 G. Prakash, for the Appellant. K. Rajeev, for the Respondents. =, , , 2008(14 )SCALE470 , 2008(12 )JT157
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No.3670 of 2005) Komalam Amma …..Appellant Vs. Kumara Pillai Raghavan Pillai and Ors. …..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of a learned Single … Continue reading
Code of Civil Procedure, 1908: Order IX Rule 13, second proviso – Ex parte decree, when can be set aside – Held: An ex-parte decree can be set aside if the defendant satisfies the court that summons were not duly served or he was prevented by sufficient cause from appearing when the suit was called for hearing – However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where defendant had notice of the date and sufficient time to appear in the court – In order to determine the application under Order IX, Rule 13, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing and did his best to do so – Sufficient cause is to be judged by reasonable standard of cautious man – In the instant case, trial court passed ex parte decree for divorce in favour of the husband – High Court set aside the ex parte decree without dealing with the issue of service of summons – High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother – Order of the High Court not sustainable – However, in order to meet the ends of justice, a sum of Rs.10 lakhs awarded to wife as a lump sum amount for maintenance – Compromise/Settlement. Order XLIII, Rule 2 – Appeal from orders – Power of appellate court to interfere with an ex-parte order – Held: The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts – The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court’s judgment without opening the whole case for re-hearing both on question of facts and law – More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of considerations expected from the first appellate court in view of the provisions of Order XLI, Rule 31 and such judgment and order would be liable to be set aside – The manner in which the language of the second proviso to Order IX, Rule 13 has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement. Evidence Act, 1872: s.114, Illustration (f) – Presumption of service – Registered letter – Held: There is a presumption of service of registered letter – However, the presumption is rebuttable on a consideration of evidence of impeccable character – General Clauses Act, 1897 – s.27. ss.101, 103 – Burden of proof of facts – Held: Rests on the party who substantially asserts it and not on the party who denies it – Burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. Practice and procedure: Technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it – Code of Civil Procedure, 1908. Words and phrases: “Sufficient”, “Sufficient Cause” – Meaning of. The appellant-husband filed a divorce petition against the respondent-wife. A notice of petition was sent to her by court which she allegedly refused to accept. The notice was sent again on 7.8.1989, which the respondent again refused to accept. The notice sent by registered AD was also returned to the court with report of refusal. Under the court’s order, summons were affixed at the house of the respondent, but she did not appear. She was also served through public notice published in a newspaper, which was also sent to her. Thereafter, on 08.11.1989, the respondent was proceeded ex parte and ex parte judgment was passed in favour of the appellant and the marriage between the parties was dissolved. Two years after the passing of the decree of divorce, the appellant got married and became father of two sons from the said marriage. The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce filed an application under Order IX Rule 13, CPC for setting aside the same on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and that she had not been served notice even by substituted service and also that even subsequent to obtaining decree of divorce, the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 Cr.P.C. The said application was accompanied by an application under Section 5 of the Limitation Act, 1963, for condonation of delay. The trial court dismissed the applications. The High Court set aside the order of the trial court. The instant appeal was filed challenging the order of the High Court. =Allowing the appeal, the Court Held: 1.1. An ex-parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. It is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso to Order IX Rule 13, CPC. “Sufficient Cause” is an expression which has been used in large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. [Paras 8 and 9] [662-A-G] Ramlal & Ors. v. Rewa Coalfields Ltd. AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr. AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood AIR 1992 SC 1540; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another (2010) 5 SCC 459);Arjun Singh v. Mohindra Kumar & Ors. AIR 1964 SC 993; Brij Indar Singh v. Lala Kanshi Ram & Ors. AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors. AIR 1964 SC 1336; Mata Din v. A. Narayanan AIR 1970 SC 1953 – relied on. 1.2. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. [Para 11] [663-C-E] State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr. AIR 2000 SC 2306; Madanlal v. Shyamlal AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors. AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors. AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd. v. Fair growth Financial Services Ltd. & Anr. (2005) 13 SCC 95; Reena Sadh v. Anjana Enterprises AIR 2008 SC 2054) – relied on. 1.3. In order to determine the application under Order IX, Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait- jacket formula of universal application. [Para 12] [663-F-H] 2.1. In view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. The High court did not deal with the issue of service of summons or as to whether there was “sufficient cause” for the wife not to appear before the court at all, nor did it set aside the said findings recorded by the trial court. The High Court held that presumption stood rebutted by a bald statement made by the respondent/wife that she was living at different address with her brother and this was duly supported by her brother who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. More so, it was nobody’s case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document was summoned from the post office. No attempt was made by the respondent/wife to examine the postman. It is nobody’s case that the “National Herald” daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court was liable to be set aside. [Paras 13,15, 17, 18 and 19] [664-B-C; G- H; 665-A-B; 666-G-H; 667-A-C] Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors. AIR 2010 SC 3817; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani AIR 1989 SC 1433 and Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. (2008) 7 SCC 663 – relied on. 2.2. The appellate court has to decide the appeal preferred under Section 104 CPC following the procedure prescribed under Order XLIII, Rule 2 CPC, which provides that for that purpose, procedure prescribed under Order XLI shall apply, so far as may be, to appeals from orders. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. [Para 20 and 21] [667-D- G] Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius & Ors. AIR 1954 SC 526; Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr. AIR 1963 SC 146; Santosh Hazari v. Purshottam Tiwari AIR 2001 SC 965; Madhukar v. Sangram AIR 2001 SC 2171; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors. (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari (2007) 8 SCC 600; Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors. AIR 2007 SC 2380 – relied on. 2.3. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court’s judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of considerations expected from the first appellate court in view of the provisions of Order XLI, Rule 31 CPC and such judgment and order would be liable to be set aside. In view of the said statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement. The High Court has not set aside the material findings recorded by the trial court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner. [Paras 22, 23 and 24] [668-G-H; 669-A] B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551 – relied on. 3. In view of the fact that the appellant got married in 1991 and has two major sons, it would not be possible for him to keep the respondent as a wife. A lump sum amount of Rs. 5 lakhs had been offered by the counsel for the appellant to settle the issue. However, the demand by the respondent/wife had been of Rs. 50 lakhs. Considering the income of the appellant as he had furnished the pay scales etc. An award of Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum amount of maintenance for the future. The said amount be paid by the appellant to the respondent in two equal instalments within a period of six months from today. [Para 25] [669-B-E] Case Law Reference: AIR 1962 SC 361 Relied on Para 9 AIR 1968 SC 222 Relied on Para 9 AIR 1992 SC 1540 Relied on Para 9 (2010) 5 SCC 459) Relied on Para 9 AIR 1964 SC 993 Relied on Para 10 AIR 1917 P.C. 156 Relied on Para 10 AIR 1964 SC 1336 Relied on Para 10 AIR 1970 SC 1953 Relied on Para 10 AIR 2000 SC 2306 Relied on Para 11 AIR 2002 SC 100 Relied on Para 11 AIR 2002 SC 451 Relied on Para 11 AIR 2002 SC 1201 Relied on Para 11 (2005) 10 SCC 127 Relied on Para 11 (2005) 13 SCC 95 Relied on Para 11 AIR 2008 SC 2054) Relied on Para 11 AIR 2010 SC 3817 Relied on Para 13 JT 2010 (12) SC 287 Relied on Para 13 AIR 1989 SC 1433 Relied on Para 14 (2008) 7 SCC 663) Relied on Para 18 AIR 1954 SC 526 Relied on Para 21 AIR 1963 SC 146 Relied on Para 21 AIR 2001 SC 965 Relied on Para 21 AIR 2001 SC 2171 Relied on Para 21 (2006) 3 SCC 224 Relied on Para 21 (2007) 8 SCC 600 Relied on Para 21 AIR 2007 SC 2380) Relied on Para 21 JT (2010) 10 SC 551) Relied on Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1467 of 2011. From the Judgment & Order dated 17.7.2007 of the High Court of Delhi at New Delhi in FAO No. 63 of 2002. Vikrant Yadav, Vishal Malik, Piyush Kant Roy, Gaurav Dhingra, M.C. Dhingra for the Appellant. Geeta Dhingra, Chander Shekhar Ashri for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO…1467… OF 2011 (Arising out of S.L.P.(C) NO. 19632 of 2007) Parimal … Appellant Versus Veena @ Bharti …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. Leave granted. 2. This appeal has been preferred against the judgment … Continue reading
Uttar Pradesh Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972-s. 2(2)-Suit for eviction of tenanted premises-Seeking exemption of applicability of the Act-Claiming the premises to be new construction falling within exemption provision-Trial Court holding that the Act was not applicable as the premises would be deemed to be newly constructed-Revision application in terms of Provincial Small Cause Courts Act-High Court holding that the Act was applicable-Supreme Court setting aside the judgment of High Court and remitting for fresh consideration-High Court denied adduction of additional evidence and refused to interfere with the question regarding applicability of the Act in exercise of revisional jurisdiction-On appeal, held: The Act was not applicable as in the facts of the case, the construction would be deemed to be new-Adduction of additional evidence rejected on valid grounds-High Court rightly refused to interfere with the finding of fact in exercise of revisional jurisdiction-Provincial Small Causes Courts Act-s. 25. Provincial Small Causes Courts Act-s. 25-Revisional jurisdiction under-Scope of-Held: Such jurisdiction can be exercised only when a question of law arises-A pure finding of fact based on appreciation of evidence may not be interfered with-But, if such finding is based on irrelevant factors, it can be interfered with-Revisional jurisdiction under the Act is wider than the jurisdiction u/s 115 CPC-Code of Civil Procedure, 1908-s. 115. Pleadings-Inadequate pleadings-Effect of-Held: When parties go into trial knowing fully well about the issues involved, the judgment based on inadequate pleadings would not have effect. Appellant was the tenant and respondent was the landlord of the premises in question. Respondent filed a suit for eviction, rather than filing an application under Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, on the ground that the premises being a new construction, the Act was not applicable to the same under exemption provision i.e. Section 2(2) of the Act. One of the issues was with regard to applicability of the Act to the premises. Trial Court held that the property in question would be deemed to be newly constructed and hence the Act was not applicable on the same. Appellant filed Revision Application thereagainst in terms of Section 25 of Provincial Small Causes Courts Act. High Court though approved finding of fact by trial Court, but relying on a judgment, held that the Act would be applicable as period of 10 years [the exempted period by Section 2 (2)] have lapsed during the pendency of the suit. In appeal Supreme Court set aside the order holding that the judgment relied on by the High Court, had been overruled by another decision. The matter was remitted to High Court for disposal in accordance with law. Before High Court, appellant filed an application for adduction of additional evidence in terms of Order 41 Rule 27 CPC. High Court refused to exercise its discretionary jurisdiction stating that the requirements of the said provision had not been fulfilled and regarding applicability of the Act, it held that the finding of fact arrived at by the Court below, cannot be interfered with in exercise of revisional jurisdiction. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1.1. Appellant’s application for adduction of additional evidence has been rejected on valid grounds by the High Court. It, for cogent and sufficient reasons, refused to exercise its discretionary jurisdiction. There is no reason to interfere therewith. Even if the purported admission made by the respondent, a subsequent pleading was to be taken into consideration, still then the respondent was required to be cross-examined. Another round of litigation would have started. [Para 19] [109-D-E] 1.2. The revisional jurisdiction of the High Court under Section 25 of the Provincial Small Causes Courts Act is wider than Section 115 CPC. But the fact that a revision is provided for by the statute, and not an appeal, itself is suggestive of the fact that ordinarily revisional jurisdiction can be exercised only when a question of law arises. However, that does not mean that under no circumstances finding of fact cannot be interfered therewith. A pure finding of fact based on appreciation of evidence although may not be interfered with but if such finding has been arrived at upon taking into consideration irrelevant factors or therefor relevant fact has been ignored, the revisional court will have the requisite jurisdiction to interfere with a finding of fact. Applicability of the provisions of Section 2(2) of the Act may in that sense involve determination of mixed question of law and fact. [Paras 20 and 21] [109-E-H] Suresh Kumar Jain v. Shanti Swarup Jain and Ors., [1997] 9 SCC 298, Sudha Rani Garg (Smt.) v. Jagdish Kumar (Dead) and Ors., [2004] 8 SCC 329 and Sanjay Kumar Gulati v. N.P. Singh and Anr., [2005] 12 SCC 396, relied on 2.1. What would amount to a new construction, being essentially a question of fact, would depend upon the nature and extent of the additions and alterations made in the whole building. It does not confine to a floor where the tenanted premises is situate. Where several tenants are inducted in different parts of the same building, it would be difficult to hold that one part of the building shall be governed by the Act and the other part would not be. Clause (c) of the Explanation I makes the legal position absolutely clear. [Para 18] [109-A-C] 2.2. The allegation contained in the plaint that the constructions were made in the year 1975 and tax was assessed with effect from 1.4.1978, being the issue involved in the suit, have been gone into by the trial court at great details. A finding of fact has been arrived at with reference to clause (c) of explanation 1 of Section 2(2) of the Act. Such a finding was based on the appreciation of evidence. [Para 26] [112-E-G] 2.3. The provisions of Section 2(2) contain a deeming provision. By reason thereof, a legal fiction has been created. It therefore, must be given its full effect. [Para 28] S.M.S.Pharmaceuticals Ltd. v. Neeta Bhalla and Anr., [2007] 4 SCC 70, Ramesh Chandra Sharma v. Punjab National Bank and Anr., (2007) 8 SCALE 240, referred to. 2.4. It is true that respondent could have made more elaborate pleadings; but no grievance was made in regard thereto. The parties knew the stand taken by the other. The issue involved in the suit was a simple one namely whether the construction was an old one or a new one. Even in the revision application, no such question was raised. Such a ground was taken before this Court for the first time. There is also nothing to show that the appellant has been prejudiced in any manner whatsoever. It is a well settled principle of law that when parties have gone into trial knowing fully well the issue involved, inadequate pleading, if any, may not be sufficient to set aside the judgment. [Para 29] [113-C-E] Raju Ramachandran, Mohit Choudhary and Dr. Kailash Chand for the Appellant. Jaideep Gupta, Pramod Dayal and Nikunj Dayal for the Respondents.
CASE NO.: Appeal (civil) 4348 of 2007 PETITIONER: Shri Mundri Lal RESPONDENT: Smt. Sushila Rani & Anr DATE OF JUDGMENT: 18/09/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 4348 OF 2007 [Arising out of SLP (Civil) No. 84 of 2007] S.B. SINHA, J … Continue reading
certified copy =whether the compromise Ex. D3 is admissible in evidence or not? The compromise dated 27.11.1972 has become the basis of the decree dated 08.12.1972 passed by the Sub-Judge, Hoshiarpur. The perusal of Ex. D4 i.e., judgment and decree were passed as per the terms and conditions of compromise placed on file. As rightly observed by the courts below, the compromise has merged into a decree and has become part and parcel of it. To put it clear, the compromise had become a part of the decree which was passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of Section 74 of the Indian Evidence Act, 1872 (in short `the Act’) and certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act. A certified copy of a public document is admissible in evidence without being proved by calling 8
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 8879-8880 OF 2011 (Arising out of SLP (C) Nos. 2708-09 of 2008 Jaswant Singh …. Appellant (s) Versus Gurdev Singh & Ors. …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) These appeals are … Continue reading
Deeds and Documents – Deed executed in respect of suit property – Will or Settlement Deed – Held: The form or nomenclature of the deed is not conclusive – Court has to very carefully examine the document as a whole, look into the substance thereof, treatment of the subject by settlor/ executant, intention appearing both by the expressed language employed in the document and by necessary implication and prohibition, if any, contained against revocation thereof – On facts, by executing the deed in question, the original owner expressed his intention, in no uncertain terms, to settle the suit property in favour of 16 persons, in praesenti – The language of the deed clearly shows that all the beneficiaries were to enjoy the property along with original owner during his lifetime and after his death, each of the beneficiaries was to get a specified share – In the concluding portion of the deed, the original owner also made it clear that he will have no right to cancel the Deed for any reason whatsoever or to alter the terms thereof – Read as a whole, it is clear that the deed in question was a `Settlement Deed’ and not a `Will’. Transfer of Property Act, 1882 – ss.19 and 21 – “Vested interest” and “contingent interest” – Difference between – Discussed. The original owner of the suit property executed document Ex. A-2, titled and described as “Settlement Deed”, in favour of the appellant, respondent nos.1 and 2, and 13 others i.e. in total 16 beneficiaries. After the death of the original owner, the appellant filed suit for partition of his share in the suit property. Respondent nos.1 and 2 filed written statement contending that the appellant obtained the `Settlement Deed’ by playing fraud, and on discovery thereof, the original owner executed `Revocation Deed’ Ex. B-2 and then executed a `Will’ Ex. B-3 whereby he bequeathed the property in their favour. The trial Court passed preliminary decree in favour of appellant holding that Ex. A-2 was “Settlement Deed” and the same was not executed as a result of fraud or misrepresentation and that the settlor did not have the right to execute `Revocation Deed’ Ex. B-2 and `Will’ Ex. B-3. The judgment was upheld by the first appellate court. On second appeal, the High Court held that even though Ex.A-2 was titled and described as `Settlement Deed’, in reality it was a `Will’ and that the appellant had no right in the suit property because the settlor had bequeathed the same in favour of respondent Nos.1 and 2. In appeal to this Court, it was contended by the appellant that the High Court misinterpreted Ex.A-2 as a `Will’ ignoring the specific stipulation contained therein that it was a `Settlement Deed’. With reference to s.19 of the Transfer of Property Act, 1882, it was contended that the transfer of the property rights was in praesenti, which coupled with an unequivocal inhibition in Ex.A-2 against cancellation/amendment thereof, clearly shows that Ex.A-2 was a `Settlement Deed’ and not a `Will’. =Allowing the appeal, the Court HELD: 1.1. Sections 19 and 21 of the Transfer of Property Act, 1882 elucidate the expressions “vested interest” and “contingent interest” in the context of transfer of property. A reading of the plain language of the above sections makes it clear that an interest can be said to be a vested interest where there is immediate right of present enjoyment or a present right for future enjoyment. An interest can be said to be contingent if the right of enjoyment is made dependent upon some event which may or may not happen. On the happening of the event, a contingent interest becomes a vested interest. [Para 10] [412-G; 413-H; 414-A-B] 1.2. Although, no strait-jacket formula has been evolved, while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the life time of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the Court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/ executant, the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. The form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof. [Para 13] [418-G-H; 419-A-B] 1.3. A careful reading of Ex.A-2 shows that in the title itself the document has been described as Settlement Deed. By executing that document, the original owner expressed his intention, in no uncertain terms, to settle the property in favour of 16 persons who were none else than his own relatives and declared that `from this day onwards I and you shall enjoy the land and house without creating any encumbrance or making any alienation whatsoever.’ This was an unequivocal creation of right in favour of 16 persons in praesenti. Though, the beneficiaries were to become absolute owners of their respective shares after the death of the settlor, the language of the document clearly shows that all of them were to enjoy the property along with settlor during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the settlor made it clear that he will have no right to cancel the Settlement Deed for any reason whatsoever or to alter the terms thereof. The mere fact that beneficiary Nos. 1 and 2 and after them their heirs were to receive honours at the temple or that shares were to be divided after disposal of the property cannot lead to an inference that Ex.A-2 was a `Will’. If Ex.A-2 is read as a whole, it becomes clear that it was a `Settlement Deed’ and the trial Court and the lower appellate Court did not commit any error by recording a finding to that effect. As a sequel to this, it must be held that the High Court committed serious error by setting aside the concurrent judgments and decrees of the two courts. [Para 21] [427-F-H; 428-A-D] 1.4. Although, in their written statement respondent Nos.1 and 2 did plead that Ex. A-2 was executed by the original owner due to fraud or misrepresentation, no evidence was led by them to substantiate that allegation. Therefore, no valid ground or justification was found to entertain that plea. [Para 23] [428-E-F] Sagar Chandra Mandal v. Digamber Mandal and others (1909) 9 CLJ 644; Ramaswami Naidu and another v. Gopalakrishna Naidu and others AIR 1978 Madras 54; Ponnuchami Servai v. Balasubramanian and others AIR 1982 Madras 281 and Poongavanam v. Perumal Pillai and another (1997) 1 MLJ 169, distinguished. Rajes Kanta Roy v. Santi Debi 1957 SCR 77; Usha Subbarao v. B.N. Vishveswaraiah (1996) 5 SCC 201 and Kokilambal v. N. Raman (2005) 11 SCC 234, relied on. A. Sreenivasa Pai and another v. Saraswathi Ammal alias G. Kamala Bai (1985) 4 SCC 85; Namburi Basava Subrahmanyam v. Alapati Hymavathi and others (1996) 9 SCC 388; Gangaraju v. Pendyala Somanna AIR 1927 Madras 197; Venkatasubramaniya Iyer v. Srinivasa Iyer AIR 1929 Madras 670 and Ramaswami Naidu v. M.S. Velappan and others (1979) 2 M.L.J.88, referred to. Vynior’s case Trin 7 Jac. 1Rot. 2629, (English Reports, Vol. LXXVII, Kings Bench Division VI), referred to. Case Law Reference: 1957 SCR 77 relied on Para 7 (1985) 4 SCC 85 referred to Para 7 (1996) 9 SCC 388 referred to Para 7 AIR 1927 Madras 197 referred to Para 7 AIR 1929 Madras 670 referred to Para 7 Vynior’s case Trin referred to Para 8 7 Jac. 1 Rot. 2629 (English Reports, Vol. LXXVII, Kings Bench Division VI) (1909) 9 CLJ 644 distinguished Para 8 AIR 1978 Madras 54 distinguished Para 8 AIR 1982 Madras 281 distinguished Para 8 (1997) 1 MLJ 169 distinguished Para 8 (1996) 5 SCC 201 relied on Para 12 (2005) 11 SCC 234 relied on Para 12 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6412 of 2002. From the Judgment & Order dated 27.2.2001 of the High Court of Judicautre at Madras in S.A. No. 1090 of 1983. R. Sundaravaradhan T.R.B. Sivakumar, K.V. Vijayakumar for the Appellant. M.S. Ganesh, R. Ayyam Perumal, K. Seshachary, V.N. Raghupathy for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6412 OF 2002 P.K. Mohan Ram ……Appellant Versus B.N. Ananthachary and others ……Respondents JUDGMENT G.S. Singhvi, J. 1. This is an appeal for setting aside judgment dated 27.2.2001 passed by the learned Single Judge of Madras High Court in Second Appeal No. 1090/1983 … Continue reading
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