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Court

This tag is associated with 49 posts

Indian Easements Act, 1882 – s.13(b) – Easement rights – Easement by grant – Suit for declaration of easement rights over `B’ schedule property of the plaint as a pathway to `A’ schedule property of the plaint – `A’ Schedule property had been allotted to plaintiff in terms of a settlement deed – `B’ Schedule pathway was situated within property under control and use of defendants – Held: Grant can be by implication as well – There was implied grant of `B’ schedule property as pathway, which can be inferred for the reason that no other pathway was provided to plaintiff for access to `A’ schedule property and there was also no objection from defendants to use of `B’ schedule property by plaintiff as pathway for number of years, at least up to the time, when alone cause of action for the suit arose – Plaintiff acquired right of easement in respect of `B’ schedule pathway by way of implied grant. = Sree Swayam Prakash Ashramam & Anr. …Appellants VERSUS G. Anandavally Amma & Ors. …Respondents = published in http://judis.nic.in/supremecourt/helddis.aspx

Indian Easements Act, 1882 – s.13(b) – Easement rights – Easement by grant – Suit for declaration of easement rights over `B’ schedule property of the plaint as a pathway to `A’ schedule property of the plaint – `A’ Schedule property had been allotted to plaintiff in terms of a settlement deed – `B’ Schedule … Continue reading

Limitation Act, 1963 – s.22 – Suit filed alleging that the defendants had illegally encroached on a public street – Trial court decreed the suit and issued permanent injunction – Decree challenged on the ground that the suit itself was barred by limitation – Held: The suit could not be said to be barred by limitation as encroachment on a public street is a continuing wrong and therefore, there existed a continuing cause of action – S.22 of the Limitation Act would apply – Code of Civil Procedure, 1908. = HARI RAM ….Appellant Versus JYOTI PRASAD & ANR. … Respondents = http://judis.nic.in/supremecourt/helddis.aspx

Limitation Act, 1963 – s.22 – Suit filed alleging that the defendants had illegally encroached on a public street – Trial court decreed the suit and issued permanent injunction – Decree challenged on the ground that the suit itself was barred by limitation – Held: The suit could not be said to be barred by … Continue reading

Code of Criminal Procedure, 1973 – s.239 – Ambit of – Approach to be adopted by the Court while exercising the powers vested in it u/s.239 CrPC – Discussed – Matrimonial case – Allegations of harassment for dowry and mental and physical torture by wife against husband (appellant no.3) and parents-in-law (appellant nos.1 and 2) – Cognizance by Court u/s.498A – Application by appellants for discharge u/s.239 CrPC – Dismissed by trial Court – Justification of – Held: Justified = The case at hand being a warrant case is governed by Section 239 Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. A plain reading of Section 239 CrPC would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.- It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The submissions of the accused has to be confined to the material produced by the police. Clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material.= Sheoraj Singh Ahlawat & Ors. …Appellants Versus State of Uttar Pradesh & Anr. …Respondents = Pulished in http://judis.nic.in/supremecourt/helddis.aspx

Code of Criminal Procedure, 1973 – s.239 – Ambit of – Approach to be     adopted by the Court while exercising the powers vested in it u/s.239 CrPC – Discussed – Matrimonial case – Allegations of harassment for dowry and mental and physical torture by wife against husband (appellant no.3) and parents-in-law (appellant nos.1 … Continue reading

s.149 CPC = No document which is chargeable with a fee under the Act shall be acted on by any court or any public office unless the appropriate fee payable under the Act in respect of such a document is paid – When a document on which court fee is payable is received in any court or public office, though the whole or any part of the appropriate court fee payable on such document has not been paid, either because of a mistake or inadvertence of the Court, the Court, in its discretion, may allow the payment of the deficit court fee within such time as may be fixed – Upon such payment, such document “shall have the same force and effect” as if the court fee had been paid in the first instance – Indisputably, the expression “document” takes within its sweep a plaint contemplated under the Code of Civil Procedure – Court Fees Act, 1870. Judicial discretion: Exercise of – Scope – Held: It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law – It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation.= A. Nawab John & Ors. ….Appellants Versus V.N. Subramaniyam ….Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx

Court Fees Act, 1870: Filing of plaint – Deficient court fee – Right of     defendant to raise objection – Held: Question of court fee is a matter between the plaintiff and the Court – If the Court comes to the conclusion that the court fee paid in the lower court is not sufficient, … Continue reading

Tamil Nadu Borstal Schools Act, 1925 = since on the date of his conviction the Petitioner was over 21 years old, and therefore, was not a juvenile under the erstwhile or current statutory dispensation as per the wisdom of the Legislature, there was no impediment or legal impropriety in his having to undergo his sentence in an ordinary jail; on the contrary being an adult it would not have been advisable for him to be detained in a Borstal School as he may detrimentally influence younger persons. The position would have been totally different had he, on the date of his conviction, been between ages of 16 and 21 years as he would then have required to be placed in a Borstal School. Even if this infraction had occurred, the Petitioner would not be entitled to bail today solely on that score. In any event, the entire argument is totally academic since on the present date the Petitioner is over 30 years of age and on the date of his conviction for the commission of the offence, the Petitioner was over 21 years of age. The Borstal Schools Act merely concerns detention of a convict, whereas the Juvenile Justice Act deals with detention as also the punishment or sentence that can be imposed. 6. Accordingly the Application for bail, on the grounds pressed before us, is devoid of merit and is dismissed.

punishable   http://judis.nic.in/supremecourt/imgst.aspx?filename=40792      REPORTABLE     IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRL.M.P. NO.853 OF 2013 IN CRIMINAL APPEAL NO.811 OF 2011       Nagoor Pichai @ Badusha …..Petitioner   Versus   State Tr. Sub-Inspector of Police …..Respondent                   J … Continue reading

Whether the offence falls under Section 304 Part II IPC and not Section 302 IPC = the manner in which the deceased was assaulted and the brutality of the assault shows that the accused formed an unlawful assembly with the object of killing the deceased. The blow landed on the deceased by Perumal had brought the deceased to the ground whereupon the accused continued brutalising the deceased with the help of stones, in the process crushing his head and squeezing his testicles. We have no manner of doubt that the nature of injuries caused to the deceased were clearly indicative of the accused having had the intention of killing him. The use of the words “with that he must go” by appellant No.2 is only a manifestation of that intention. 18. There is, therefore, no room for altering the conviction from Section 302 to Section 304 Part II, IPC as argued by the learned counsel. 19. In the result this appeal fails and is hereby dismissed.

published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40749   REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1623 OF 2009 Shanmugam and Anr. …Appellants Versus State Rep. by Inspector of Police, T. Nadu …Respondent   J U D G M E N T T.S. THAKUR, J. 1. This appeal arises out of a judgment and order dated … Continue reading

Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. = Suicide note completely exonerates A-1, which states that he was not responsible for death of the deceased. On the other hand, the deceased described herself as extremely selfish, egoist and, therefore, not a match for A-1. She entertained the belief that her husband A-1 was in love with A-2 and wanted to marry A-2. Note states it was for their happiness she had decided to end her life. She also wanted to have the marriage of A-1 and A-2 solemnized with pomp and gaiety. On reading the suicide note, one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband. Too much of possessiveness could also lead to serious emotional stress, over and above the fact that she had one abortion and her daughter died after few days of birth. No evidence is forthcoming in this case to show that A-2 ever evinced any interest to marry A-1. On the other hand, during the subsistence of the alleged relationship, A-2 herself got married. 29. We are, therefore, of the considered view that the relationship A-1 had with A-2 was not of such a nature which under normal circumstances would drive one to commit suicide or that A-1 by his conduct or otherwise ever abetted or intended to abet the wife to commit suicide. Courts below, in our view, have committed serious error in holding that it was due to the extra marital relationship A-1 had with A-2 that led the deceased to take the extreme step to commit suicide, and A-1 was instrumental for the said act. In the circumstances, we are inclined to allow this appeal and set aside the order of conviction and sentence imposed on the appellant, and he is set at liberty. Ordered as above.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40742 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO.811 OF 2004 Pinakin Mahipatray Rawal Appellant Versus State of Gujarat Respondent   J U D G M E N T K.S. RADHAKRISHNAN, J. 1. We are in this case concerned with the question as to whether the relationship … Continue reading

Order XV Rule 5 of the Code of Civil Procedure (‘CPC’ for short). strike off defence as he failed to comply the orders and filed written statement belatedly -Apex court – yes = Rule 5 of Order XV, Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act, 1972 and the said Rule reads as follows: “5. Striking off defence for failure to deposit admitted rent.— (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence. Explanation 1-3 * * * * (2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.”= suit for eviction of the respondent-defendant-tenant from the suit premises,= Inspite of receipt of notice, the respondent did not choose to file written statement within the specified period. After long delay, the respondent filed his written objection on 3rd April, 1999 against which the appellant-plaintiffs filed an application for striking off the defence on the ground that the respondent failed to deposit the rent, the damages due and the cost of the suit inspite of order dated 16th December, 1998, the first date of hearing and also failed to deposit water tax and house tax and thereby not complied with the provisions under Order XV Rule 5 of the Code of Civil Procedure (‘CPC’ for short).= In the present case, the Trial Court fully applied its mind while exercising its discretionary power to strike off the defence. The grounds were noticed, as mentioned at Paragraph 11 of the judgment passed by the District Judge and is quoted above. Learned District Judge exercising its revisional jurisdiction, affirmed the order passed by the Trial Court. The aforesaid judgment(s) cannot be said to be perverse nor can it be said that the courts below have exceeded or failed to exercise their jurisdiction. The power to strike off the written statement vested under Rule 5 of Order XV was exercised by the lower courts after going through the facts of the case. 16. Inspite of the aforesaid fact, we find that the High Court failed to give any ground while exercising its inherent power under Article 227 of the Constitution of India. Learned Single Judge by impugned judgment observed that the Supreme Court has held that the Court has jurisdiction and discretion to accept the written statement even after expiry of 90 days from the date of service of summons on payment of heavy cost. Defendant has neither cited any decision nor shown any ground for acceptance of written statement even after expiry of 90 days from the date of service of summons on payment of heavy cost. The order passed by the Trial Court by exercising its discretionary power and the order passed by the Revisional Court affirming the Trial Court order were not perverse and both the courts below have not exceeded their jurisdiction. Hence, it was not open to the High Court to sit in appeal under Article 227 of the Constitution of India to alter such finding of facts and to accept the written statement without any ground. 17. For the reasons aforesaid, we have no option but to set aside the impugned judgment dated 17th September, 2007 passed by the learned Single Judge, High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No.44387 of 2007 and allow the appeal. The Trial Court is expected to decide the Suit No.17 of 1998 expeditiously as the matter is pending since long. No costs.

 published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40706   REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7279 OF 2013 (ARISING OUT OF SLP(C) NO.22265 OF 2007) BAL GOPAL MAHESHWARI & ORS. … APPELLANTS VERUS SANJEEV KUMAR GUPTA … RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. This … Continue reading

Order 8 Rule 10 C.P.C. = The fact that the defendants remained ex parte or no written statements are filed, by itself, does not relieve a Court, of its obligation to verify the legality and genuinity of the claim in any suit.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=16690 PETITIONER: BALRAJ TANEJA & ANR. Vs. RESPONDENT: SUNIL MADAN & ANR. DATE OF JUDGMENT: 08/09/1999 BENCH: D.P.Mohapatro, S.Saghir Ahmad JUDGMENT: S.SAGHIR AHMAD, J. Leave granted. Respondent No.1, Sunil Madan, filed a suit in the Delhi High Court against the appellants and respondent No.2 for specific performance of an agreement for sale in respect … Continue reading

compassionate employment= Father of the respondent who was working as a Class III employee with the appellant Bank died on 19.4.2006 while in harness. The respondent applied for compassionate appointment on 12.5.2006. B. During the pendency of the application filed by the respondent, a new scheme dated 12.6.2006 came into force with effect from 6.10.2006. Clause 14 thereof provides that all applications pending on the date of commencement of the scheme shall be considered for grant of ex-gratia payment to the family instead of compassionate appointment.= A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. vs. Raj Kumar (2010) 11 SCC 661. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under: Date of effect of the scheme and disposal of pending applications: The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compasionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme.”= The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered. 14. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside. 15. The respondent may apply for consideration of his case under the new Scheme and the appellant shall consider his case strictly in accordance with clause 14 of the said new Scheme within a period of three months from the date of receiving of application. With these observations, appeal stands disposed of.

 published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40634  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6348 OF 2013 (Arising out of SLP(C)No.13957/2010) MGB GRAMIN BANK Appellant (s) VERSUS CHAKRAWARTI SINGH Respondent(s) O R D E R 1. Leave granted. 2. This appeal has been preferred against the impugned judgment and order dated 27.1.2010 … Continue reading

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