This tag is associated with 24 posts

Or.22, rule 10 C.P.C- In a suit by partnership firm of two partners , when one partner dies pending suit, the suit can be continued by another partner M/s AVK Traders … Appellant Versus Kerala State Civil Supplies Corporation Limited … Respondent = Reported in http://judis.nic.in/supremecourt/filename=40915

Or.22, rule 10 – In a suit by partnership firm of two partners , when     one partner dies pending suit, the suit can be continued by another partner despite of non-joining of uninterested legal heirs of deceased partner as the entire interest devolves on the surviving partner as per rule 10 of Or. 22 of … Continue reading

Though the appellant is eligible for consideration of the selection in to IAS – she was denied as she was a junior officer – not correct approach and against the rules and guidelines – B. Amrutha Lakshmi … Appellant Versus State of Andhra Pradesh and Ors. … Respondents= judis.nic.in/supremecourt/filename=40890

Though the appellant is eligible for consideration of the selection in to IAS – she was  denied as she was a junior officer – not correct approach and against the rules and guidelines = Apex court held wrong but due to lapse of time the apex court granted damages instead of disturbing processes already taken over long … Continue reading

Workmen compensation Act – whether the employee’s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. – remanded = The Commissioner, Workmen’s Compensation (1st Court), West Bengal held on 24.6.2010 that the Applicant/Respondent had met with an accident on 27.12.1999 while in the employment of the Appellant and that considering his age, wages and injury he was entitled to compensation computed at Rs.12,00,000/- (Rupees Twelve Lac) which is the maximum awardable, together with simple interest at the rate of twelve per cent per annum till the date of realization. = His argument is that this health malady has not arisen as a consequence of the Respondent’s services with the Appellant, and hence no compensation was payable under Section 3 of the Employee’s Compensation Act, 1923 which comes into operation only in the event of an employee suffering personal injury caused by an accident arising out of and in the course of his employment.= whether the employee’s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. There can be no gainsaying that the Employee’s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee’s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen’s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013. 4. The Appeal stands allowed accordingly.= A perusal of the impugned order makes it palpably clear that the Appellant-company’s Appeal was dismissed following the decision in FMAT No.1327 of 2010 (Dredging Corporation of India Ltd. v. P.K. Bhattacherjee). In these circumstances, this matter also requires to be remanded to the High Court of Calcutta for a fresh hearing in F.M.A. No.869 of 2010. Parties to appear before the High Court on 18.11.2013. 6. The Appeal stands allowed accordingly.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40779     NON-REPORTABLE   IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NO. 8278 OF 2013 [Arising out of S.L.P.(C)No.26414 of 2011]       Dredging Corporation of India Ltd. …..Appellant   Versus   P.K. Bhattacherjee …..Respondent   W I T H CIVIL APPEAL NO. 8279 OF 2013 … Continue reading

jurisdiction of a Single Judge and of Benches of the Court.= JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT 1. Cases ordinarily to be heard by a single Judge—Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge setting alone: (i) to (xvii) xxx xxx xxx (xviii) (a) Application or petition under Article 226 of the Constitution of India for the issue of any directions, orders or writs in the nature of Mandamus, prohibition, quo-warranto or certiorari for the enforcement of fundamental rights conferred by Part III of the Constitution of India or for any other purpose, except: (i) Petitions where vires of Acts or statutory rules, regulations, or bye-laws are challenged. (ii) Petitions where personal liberty is involved. (iii) Petitions pertaining to all Revenue/tax matters including entertainment taxes, except Municipal Tax. (iv) Petitions arising from the orders of the Board for Industrial and Financial Reconstruction/Appellate Authority for Industrial and Financial Reconstruction or seeking directions to them; and (v) Petitions pertaining to Public Interest litigation. (vi) Petitions pertaining to the award to Tenders. (vii) Petitions relating to Co-operative Societies. (viii) Petitions being service matters of Armed Forces of the Union. (ix) Petitions arising out of Land Acquisition. (x) Petitions concerning orders passed by the High Court on the administrative side. Provided that as regards pending cases, the learned single Judge may hear the part-heard matters. Explanation: The preliminary hearing for admission and final disposal of applications and petitions pertaining to matters mentioned in clause (i) to (x) of sub-rule (xviii)(a) above shall however be before a Bench of two Judges and before a Single Bench when there is no sitting of Division Bench.” Rule 4, which relates to jurisdiction of a Bench of two Judges, also reads as under: “4. All cases to be disposed of by a Bench of two Judges save as provided by law or by these rules—Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges.” A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible. 15. We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost. In the result, the appeal is allowed and the impugned order is set aside. The writ petition filed by respondent No.1 shall now be listed before a Single Judge of the High Court, who shall decide the same without being influenced by the observations contained in the impugned order or this order.

 published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40797                     NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 8288 OF 2013 (Arising out of SLP (C) No. 27387 of 2012) M/s. Monnet Ispat and Energy Limited ….Appellant versus Jan Chetna and others ….Respondents     … Continue reading

Section 6 of the amended Hindu Succession Act = This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation, her son having filed the suit himself. There is nothing in the Section which shows that it would apply to all females retrospectively including a daughter who had expired prior to the coparcener himself, prior to any litigation and prior to the amendment Act itself. If such a daughter was also to be included the entire population would come to be included and the children and grandchildren of all deceased females would claim their share in the estate of their grandparents and great grandparents through their mother. It would have to be seen whether the legislation is capable of such an absurd interpretation. 14.The words “on” and “from” show and suggest that on a date prior to the Act coming into force the daughter (female) would not be included as a coparcener. Consequently, all daughters born to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener. Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would be covered by the law prior to the amendment. If such interpretation is not given the words “on” and “from” “the commencement of the Hindu Succession (Amendment) Act, 2005” would lose their significance all together and would be rendered otiose. 15.This aspect is essentially decipherable from the proviso to Section 6(1) of the Act cited above. This provision has been specifically enacted to lay down a cu­toff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th December 2004. Hence when the Act came into force on 9th September 2004 partition could be claimed by a daughter, if the coparcenery property was not partitioned about nine months prior thereto. This shows that the earlier dispositions and alienations could not be challenged so that whilst the daughter was not a coparcener and certain rights were created they would stand. This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint family properties prior to the creation of the new right in favour of the daughter. In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court considered the dwelling house and the agricultural properties of the deceased, one Dashrathsingh. He died in 1998 having married twice and leaving behind two married daughters born to his first wife and two sons born to his second wife. In this case the retrospectivity of the Act was to be considered. It was observed that succession had opened in 1998 when Darshrathsingh died. There was no amendment to the Hindu Succession Act at the relevant time. The division of shares was immediate without the rights being deferred to the married daughters who were married prior to the Maharashtra Amendment to the Hindu Succession Act. The Maharashtra Amendment with regard to the grant of coparcenery rights to daughter made an exception for married daughters. That amendment, of course, would no longer be applicable in view of the Central Amendment Act. The contention with regard to the dwelling house that the deceased would not take the share was accepted. The shares devolved upon the two sons in 1998 by application of Section 6 r.w. Section 8 of the old Hindu Succession Act of 1956.- It may be mentioned that this was main aspect which was required to be considered to see the prima facie case of the Plaintiff. Unless the Plaintiff had shown a legal right in the estate of Sakharam he cannot proceed with the suit and derail various transfers effected earlier. The filing of the suit decades after Sakharam died, mutation entries came to be made and also five years after the amendment itself came into force would even otherwise be barred by the law of limitation. In this case Sadashiv is the only son of Sakharam has been bequeathed the entire property of Sakharam. It would otherwise be a natural Will. It is also a registered Will. Sadashiv has acted upon the Will and shown himself as owner of the suit properties at least since 3rd December 2002 when the mutation entry came to be made to alter the record of rights. He has dealt with that property by assignment since 2004 and under the registered development agreement since March 2005. The initial developers have, in turn, transferred their properties. Hence transfers have come to be effected from Defendant Nos.14 to 15 to 16 etc. 29.The Defendants further claim that Sadashiv initially obtained the power of attorney from the original owners. The development agreement itself was entered into along with the power of attorney. The initial power of attorney was dated 26th March 1965. A later registered power of attorney has been executed on 16th January 1991. The registered development agreement has been executed on 24th December 2004 by Sakharam and Sadashiv. The developers have been put in possession of the suit properties under possession letters executed in December 2004. With regard to the other property bequeathed under the Will also similarly possession receipt has been executed. The developers, therefore, claim that the suit properties under the development did not even belong to Sakharam at the time of his death. Upon such contention the Counsel on behalf of the original Plaintiff claims that the properties claimed to be purchased by Sakharam and Sadashiv were out of the proceeds of other ancestral properties which formed the nucleus. No document in that regard has been produced. None is seen to have been shown in the trial Court. The impugned order makes no reference to such nucleus. 31.Consequently, on facts as well as law the Plaintiff is not seen to have made out any prima facie case for grant of any interim reliefs. No party can stall all development at such a late stage without showing an iota of legal right.

published in http://bombayhighcourt.nic.in/generatenew.php?path=./data/judgements/2011/&fname=CAO591011.pdf&smflag=N AO.792.2011(JUDGMENT).sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 265 OF 2011 Sadashiv Sakharam Patil & Ors.  …Appellants Vs. Chandrakant Gopal Desale & Ors. …Respondents ALONGWITH APPEAL FROM ORDER NO. 274 OF 2011 M/s. Roma Builder Pvt. Ltd.  …Appellant Vs. Chandrakant Gopal Desale & Ors.  …Respondents ALONGWITH APPEAL FROM ORDER NO. 518 OF 2011 M/s. Nikhil Construction …Appellant Vs. Chandrakant Gopal Desale & Ors.  …Respondents ALONGWITH APPEAL FROM ORDER NO. 792 OF 2011 M/s.Darshan Enterprises  …Appellants Vs. Chandrakant Gopal Desale & Ors.  …Respondents Deepak Chitnis – Chiparikar & Co., for Appellants Mr. Sandesh Patil for Appellant in AO No.265/2011 Mr. P. Sakseria, Sr. Counsel a/w. Mr. Mayur Khandeparkar a/w.Mr. Ranjit Shetty a/w. Mr. Lucky Rai Indorkar, Mr. Aniket Nair i/b. M/s. Hariani & Co., for Respondent No.1 in AO.No.265/2011 AO No.274.2011, AO No.518.2011 & AO No.792/2011 Mr. R.S. Apte, Sr. Advocate a/w. Mr. G. Godre for Appellant in AO No.274/2011 & Respondent No.14 in AO NO.265/2011 Mr. Deepak Chitnis, Advocate for the Appellant in AO No.180.2011 ::: Downloaded on – 13/08/2013 20:41:00 :::Bombay High Court 2 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw for Respondent No.13 in AO No.265/2011. … Continue reading

Section 193 Cr.P.C. =Constitution Bench for consideration. 4. The questions which require the consideration of the Constitution Bench are as follows: i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? iii) Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction? v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? vi) Was Ranjit Singh’s case (supra), which set aside the decision in Kishun Singh’s case(supra), rightly decided or not? = “193. Cognizance of offences by Courts of Session. – Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”= whether the decision in Ranjit Singh’s case (supra) was correct or not in Kishun Singh’s case (supra), is answered by holding that the decision in Kishun Singh’s case was the correct decision and the learned Session Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate. 31. Consequent upon our aforesaid decision, the view taken by the Referring Court is accepted and it is held that the decision in the case of Kishun Singh vs. State of Bihar and not the decision in Ranjit Singh Vs. State of Punjab lays down the law correctly in respect of the powers of the Session Court after committal of the case to it by the learned Magistrate under Section 209 Cr.P.C. 32. The matter is remitted to the Three-Judge Bench to dispose of the pending Criminal Appeals in accordance with the views expressed by us in this judgment.

 Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40579 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 148 of 2003   1 2 DHARAM PAL & ORS. … APPELLANTS VS.   2 STATE OF HARYANA & ANR. … RESPONDENTS WITH CRIMINAL APPEAL NOS. 865 of 2004, 1334 of 2005 and 537 of 2006     J … Continue reading

Company Owned Company Operated outlets (COCO) as a means to enable National Oil Companies to run and operate their own outlets which were to be run as model retail outlets.= Although, the Appeals have been filed on account of the denial to the land owners of the grant of dealership in respect of the lands demised by them to the Oil Companies, = the doctrine of promissory estoppel and legitimate expectation, as canvassed on behalf of the Appellants and the Petitioners, cannot be made applicable to these cases where the leases have been granted by the land owners on definite terms and conditions, without any indication that the same were being entered into on a mutual understanding between the parties that these would be temporary arrangements, till the earlier policy was restored and the claim of the land owners for grant of dealership could be considered afresh. On the other hand, although, the nominees of the lessors were almost in all cases appointed as the M&H Contractors, that in itself cannot, in our view, convert any claim of the land owner for grant of a permanent dealership. As has been indicated hereinbefore, even the M&H Contractor had to submit an affidavit to the effect that he did not have and would not have any claim to the dealership of the retail outlet and that he would not also obstruct the making over possession of the retail outlet to the Oil Company, as and when called upon to do so. – the entire focus has shifted to COCO outlets on account of the fresh lease agreements entered into by the Appellants with the Oil Companies which has had the effect of obliterating the claim of the land owners made separately under earlier lease agreements. The claims of the Appellants/Petitioners in the present batch of matters have to be treated on the basis of the agreements subsequently entered into by the Oil Companies, as submitted by the learned Attorney General.- The four Transfer Petitions, being T.P.(C) Nos. 971-973 of 2010 and T.P.(C) No. 1260 of 2011, which were heard along with these Appeals and Petitions, are allowed. These Appeals and Petitions must, therefore, fail and are dismissed.However, it will be open to the Appellants and the Petitioners to approach the proper forum in the event they have suffered any damages and loss, which they are entitled to recover in accordance with law.

 published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40540    REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5228 OF 2013 (Arising out of SLP(C) NO. 5849 OF 2008) MOHD. JAMAL …APPELLANT Vs. UNION OF INDIA & ANR. …RESPONDENTS WITH C.A. No.5229/2013 @ S.L.P.(C) No.8658/2008 C.A. No.5230/2013 @ S.L.P.(C) No.27299/2008 W.P.(C) No.459/2009 W.P.(C) No.528/2008 C.A. No.5231/2013 … Continue reading

MEDICAL NEGLIGENCE – The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.- It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent’s throat. = it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. – the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute – the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 114 OF 2009 (Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)   1. ILS Hospital Previously known as Institute of Laparoscopic Surgery Jeewansatya, DD-6 Salt Lake City, Sector-1 Kolkata-700064 2. Dr. Om Tantia Director … Continue reading

ARBITRATION ACT= The matter was, thereafter, taken up by the designate Judge who came to a finding that the agreement dated 24.05.2005 was not legal and valid and, therefore, the disputes between the parties arising out of the said agreement could not be referred to an arbitrator. The application under Section 11(6) of the 1996 Act was, therefore, dismissed. 9. It is the said decision of the designate Judge, which is the subject matter of challenge in these appeals. The issue regarding the continued existence of the arbitration agreement, notwithstanding the main agreement itself being declared void, was considered by the 7-Judge Bench in SBP & Co. (supra) and it was held that an arbitration agreement could stand independent of the main agreement and did not necessarily become otiose, even if the main agreement, of which it is a part, is declared void. has to first decide his own jurisdiction and whether the party concerned has approached the right High Court.; whether there is an arbitration agreement and as to whether the person who has made the request before him, is a party to such agreement. ; whether the claim was a dead one or a long-barred claim, that was sought to be resurrected. = The above views expressed by the 7-Judge Bench and by the learned Single Judge are sufficient to dispose of these appeals. In the light of what has been indicated hereinbefore, we have no hesitation in setting aside the impugned judgment and the order of the designated Judge once again and directing that the matter be again considered de novo in the light of the observations made hereinabove and the various decisions cited at the Bar.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4596 OF 2013 [Arising out of SLP(C)No.7334 of 2010] M/s Today Homes & Infrastructure Pvt. Ltd. …Appellant Vs. Ludhiana Improvement Trust & Anr. …Respondents WITH C.A. No.4597 of 2013 @ SLP(C)No.11778/2010, C.A. No.4598 of 2013 @ SLP(C)No.10795/2010, C.A. No.4595 of 2013 … Continue reading

whether the Coal Mines Provident Fund Commissioner is a public officer under the Union of India so as to attract the provisions of Order XXVII Rule 5A of the Code of Civil Procedure.


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