article 136

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Right to Vote & Right to Contest When arise = “A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.” – a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40561 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 3040-3041 OF 2004 The Chief Election Commissioner Etc. … Petitioners Versus Jan Chaukidar (Peoples Watch) & Ors. … Respondents ORDER These are appeals by way of Special Leave under Article 136 of the Constitution against the common order dated … Continue reading

Rape by Police in Custody – absence of medical examination about the Rape is not fatal to the prosecution as they made efforts to get medically examined through petition, through complaint but the Doctors refused =the complainant and one Kamaljit Kaur, who were working as ‘dai’ and nurse respectively, and brought them to the Police Station. On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the complainant was not released.- in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour. when she was released on 10.02.1989, she was in a bad shape and she told them about the torture and sexual intercourse that was forced upon her by the appellants on the night of 09.02.1989. – The appellants in their statements under Section 313 Cr.P.C. before the trial court, on the other hand, took the defence that the complainant (PW-3) along with Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. = the trial court and the High Court have recorded the findings of rape committed by the appellants on PW-3 because of her consistent version in her petition dated 13.02.1989 (Ext.P3/A) to the Governor made within a few days of her release from Police Station on 09.02.1989, her complaint dated 25.07.1989 and her evidence in Court. PW- 1, PW-2 and PW-3 have deposed that an attempt was made for a medical examination in the Civil Hospital, Balachaur, and the hospital at Saroa but the doctors refused to conduct the medical examination on account of the pressure from the appellant-Radha Krishan, but DW-11 and DW-12, the doctors in the hospital, have denied that they had refused to conduct the medical examination. The result is that there is no medical evidence to support the allegation of rape made by PW-3 against the appellants. The High Court, however, has held that as PW-3 was not a young woman, medical examination was not significant and absence of medical examination may not be sufficient to disbelieve PW-3 if her story stands on its own. The High Court has found that she has consistently stated in her petition dated 13.02.1989 to the Governor of Punjab, in her complaint dated 25.07.1989 before the Magistrate and in her deposition in Court that she was detained in the night and raped by the appellants and both the trial court and the High Court have found that soon after she was released from the Police Station on 10.02.1989, she stated before her husband (PW-1) and the neighbour (PW-2) that she had been raped by the appellants and that she was bleeding profusely. The trial court and the High Court, therefore, have come to the finding of guilt of rape against the appellants relying on the evidence of PW-3 as corroborated by the evidence of PW-1, PW-2 under Section 157 of the Indian Evidence Act.= Thus, the trial court and the High Court have recorded concurrent findings of facts holding the appellants guilty of the offences under Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and the appellant- Radha Krishan guilty of the offence under Section 342 IPC also. = It has been repeatedly held by this Court that even though the powers of this Court under Article 136 of the Constitution are very wide, in criminal appeals this Court does not interfere with the concurrent findings of facts, save in exceptional circumstances where there has been grave miscarriage of justice

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40523 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 232 of 2007 Charanjit & Ors. …… Appellants Versus State of Punjab & Anr. ….. Respondents       J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave … Continue reading

the buildings in question were constructed in violation of the sanctioned plans and that the flat buyers do not have the locus to complain against the action taken by the Corporation under Section 351 of 1888 Act. Both, the trial Court and the High Court have assigned detailed reasons for declining the petitioners’ prayer for temporary injunction and we do not find any valid ground or justification to take a different view in the matter. 17. The submission of Dr. Abhishek Manu Singhvi that the constructed area should be measured with reference to the total area of the plot cannot be accepted for the simple reason that the State Government had sanctioned change of land use only in respect of 13049.45 sq. meters. 18. In view of the above, we may have dismissed the special leave petitions and allowed the Corporation to take action in furtherance of notices dated 19.11.2005 and orders dated 3/8.12.2005, but keeping in view the fact that the flat buyers and their families are residing in the buildings in question for the last

1     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 33471 OF 2011   Esha Ekta Appartments CHS Ltd. and others … Petitioners Versus The Municipal Corporation of Mumbai and another … Respondents With SLP(C) No.33601 of 2011 SLP(C) No.33940 of 2011 SLP(C) No.35324 of 2011 SLP(C) No.35402 … Continue reading

Civil Procedure Code, 1908-Or 2 R 2 (3)-Bar in respect of claim of relief in subsequent suit-The plea of bar under Or 2 R 2 (3) CPC is maintainable only if the defendant files in evidence before the trial Court the pleadings in the previous suit to prove identity of cause of action in the two suits-Inference about the bar cannot be culled merely from the plaint in the second case-Attempt to bring the pleadings of the earlier suit on record at the stage of proceedings before Supreme Court not allowed. Trade and Merchandise Marks Act, 1958, Copy Right Act-In case of continuing or recurring wrong there would be corresponding, continuous or recurrent causes of action-Action for passing off-Continuing deceit gives rise to fresh causes of action-First suit based on infringement of plaintiff’s trade mark by defendants and passing off of the defendants goods as if they were plaintiff’s goods-Second suit based on continuous acts of infringement of its trade mark and continuous passing of action on the part of the defendants subsequent to filing of the earlier suit and continuing till the date of filing of the second suit-Cause of action in the two suits are different-One of the ingredients of Or 2 R 2 (3) thus having not been satisfied, bar thereunder could not operate. Limitation Act 1963 S.22-In a case of continuing breach of contract or continuing tort-A fresh period of limitation runs at every moment of the time during which the breach or the tort continues. The appellant company, manufacturing and marketing waterproof goods and rubberised waterproof raincoats throughout the country under the trade mark `Duck Back’, was registered under the Trade and Merchandise Marks Act, 1958 and the Copy Right Act. It filed original Suit No. 238 of 1980 in City Civil Court, Hyderabad against the respondents alleging that they were manufacturing and marketing similar products under the trade mark `Duck Back’ which phonetically and visually resembles the plaintiffs trade mark resulting in confusion among consumers and amounted to passing off the appellant’s goods as of the respondents’. The suit was dismissed on 6th April, 1982 on the ground that there was no infringement of the appellant’s trade mark `Duck Back’ by the respondents. In the year 1982 the second suit was filed in the City Civil Court, Hyderabad by the appellant against the respondents inter alia alleging that they were ill-advised and mis-informed in filing the first suit and further alleged that even after 1982, the respondents were carrying on infringement of their registered trade mark and were passing off their goods as the goods of the appellants and prayed for permanent injunction restraining the respondents from infringing their trade-mark and copy right as well as from passing off their goods as if they were of the appellant’s. The trial court held that the suit was barred by the provisions of Order 2 Rule 2 Sub Rule (3) of the CPC. On appeal, the High Court held that the appellants had proved their case of pasting off against the respondents but upheld the finding of the trial court that the suit was barred by order 2 Rule 2 sub rule (3) of the CPC and thus dismissed the same. Aggrieved, the plaintiff filed the present appeals. =Allowing the appeal, this Court HELD:1.1. A suit can be said to be barred under Order 2, Rule 2 (sub rule 3) CPC if it is shown that the second suit is based on the same cause of action on which the earlier suit was based; and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to him of that cause of action, the relief which the plaintiff had failed to pray in that suit can not be subsequently prayed for except with the leave of the Court. [702-H, 703-A- B] 1.2. As regards the plea of the respondents that suit is barred under order 2 Rule 2 sub rule (3) there is a threshold bar against them for their failure to bring on record of the trial court the pleadings of the earlier suit. No inference can be drawn in absence of the pleading of the previous suit being on record. Even before the High Court no attempt was made by them to produce the pleading in the earlier suit by way of an application for additional evidence. Production of the copy of the plaint by the respondent in the Counter Affidavit at the stage of proceedings before the Supreme Court is of no avail. [703-C, 704-G] 1.3. An action for passing off is a common Law remedy being an action in substance of deceit under the law of torts and for a fresh deceitful act, a person would naturally have a fresh cause of action. Thus every time when a person passes off his goods as those of another, he commits the act of such deceit. Similarly, when a person commits a breach of registered Trade Mark of another, he commits a recurring act of breach of such Trade Mark giving recurring and fresh cause of action at each time of such infringement. [708-C-E] 1.4. Order 2 Rule 2 sub rule (3) requires that the cause of action from the earlier suit must be the same on which the subsequent suit is based and unless there is identity of cause of action in both the suits, the bar of Order 2 Rule 2 sub rule (3) will not get attracted. Further, in cases of continuous causes of action or recurring causes of action, the bar can not be invoked. The cause of action in the first suit of 1980 was based on infringement of plaintiff’s Trade Mark “Duck Back” by the defendant till the date of the suit and the grievance regarding passing off the defendant’s goods as if they were plaintiff’s goods, was also confined to the situation prevailing on that date. But in the second suit the grievance of the plaintiff is entirely different and is not based on any act of infringement or passing off alleged to have been committed by the defendant in 1980. But the plaintiffs grievance is regarding the continuous acts of infringement of its Trade Mark `Duck Back’ and the continuous passing of action on the part of the defendants subsequent to the filing of the earlier suit and which had continued on the date of the second suit of 1982. The cause of action in the second suit is continuous and recurring. The infringement of the plaintiff’s Trade Mark “Duck Back” and passing of action on the part of the defendants in selling their goods by passing of their goods as if they were plaintiff’s goods, had continued all throughout uninterrupted in a recurring manner and such an action would give a recurring cause of action to the holder of the Trade Mark. [705-CE-F, 708,B] 2. By virtue of the provisions of section 22 of the limitation Act, 1973, in a case of continuing breach of contract or in a case of continuing tort, a fresh period of limitation begins to run every moment of the time during which the breach or the tort, as the case may be, continues. [709 AB] 3. As held by the High Court, on merits, the action of the defendants is actionable and amounts to acts of passing off as the waterproof raincoats manufactured by the first defendant bearing the trade mark “Dack Back” are phonetically and visually similar the those of the plaintiff bearing the trade marks “Duck Back”. The plaintiff had made out a case for actionable breach of infringement of plaintiff’s trade mark as well as actionable act of passing off by the defendants of their goods as if they were plaintiff’s goods and, therefore, the plaintiff’s suit would be required to be decreed. The judgment and order of dismissal of the plaintiff’s suit as passed by the Trial Court and as confirmed by the High Court are set aside. [709-D-G] Gurbux singh v. Bhooralal, [1964] 7 SCR 831, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14610 of 1996. =1997 AIR 1398, 1996( 8 )Suppl.SCR 695, 1997( 1 )SCC 99, 1996( 8 )SCALE369 , 1996(10 )JT 96

PETITIONER: M/S BENGAL WATERPROOF LIMITED Vs. RESPONDENT: M/S BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER DATE OF JUDGMENT: 18/11/1996 BENCH: A.S. ANAND, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT: J U D G M E N T S.B. Majmudar. J. Leave granted. By consent of learned advocates of parties the appeal arising from the Special Leave Petition was finally … Continue reading

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