advocatemmmohan
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Gwalior
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
Suit: Restoration of suit – Suit for partition of joint properties filed by deceased father – Dismissed as withdrawn – Right of plaintiff’s daughter to restore the suit after death of plaintiff – Held: Daughter and legal representative are entitled to continue the suit in view of the provisions of Hindu Succession Act – Only when right to sue is personal to deceased, same would not survive for benefit of his legal representatives – As per record she came to know later on that fraud was committed while getting partition suit dismissed as withdrawn – Hence, she was entitled to file application for restoration of the suit – Hindu Succession Act, 1956 – s.6 – Code of Civil Procedure, 1908 – O.22 r.3. Partition suit – Withdrawal of – Permissibility – Held: In a suit for partition of joint properties every defendant is also in the capacity of the plaintiff and is entitled to decree in his favour, if it is established that he has share in the properties – On facts, suit for partition of the joint properties, dismissed as withdrawn without notice to another brother, who was also entitled to share in the properties – Suit directed to be restored – Suit – Code of Civil Procedure, 1908 – O.23 r.1. The father of respondent no.1 filed suit for partition of joint properties. The suit was decreed. In first appeal, High Court set aside decree and remanded matter to trial court for fresh decision. Against order of remand, father of respondent no. 1 filed LPA. On 24.2.1997, an application for withdrawal of LPA was filed. The LPA was dismissed as withdrawn on the same day. On 28.2.1997, another application was filed for withdrawal of partition suit. The suit was dismissed as withdrawn on same day. On 11.8.1998, father of respondent no.1 expired. Respondent no.1 filed application for recalling the order dated 24.2.1997 on the ground that the application of withdrawal did not bear signature of her father and her father’s signatures were forged. It was mentioned in the application that one J.P. Sharma, advocate, had noted his appearance on behalf of her father in partition suit subsequently without seeking no objection certificate from the previous counsel, who had filed the plaint, and thereafter filed application for withdrawal of LPA, which was illegal and, therefore, the order disposing of the LPA as withdrawn should be recalled. High Court allowed the application for recalling the order dated 24.2.1997 observing that fraud was played upon the Court and directed the Registrar of the Court to file a complaint against advocate J.P. Sharma and also against advocate who had identified the signature of father of the respondent No. 1. The High Court also directed the Registrar to initiate criminal proceedings against the appellant who was supposed to be the beneficiary of the act of forging for initiating criminal proceedings by filing a complaint. In SLP, said order was upheld. After hearing LPA, it was dismissed by High Court as not maintainable. SLP thereagainst was also dismissed. Thus order of remand became final. The trial court allowed the application of respondent no.1 for restoration of partition suit. High Court upheld the same. Hence the present appeal. =Dismissing the appeal, the Court HELD: 1. It is well settled that where the right to sue is personal to the deceased, the same does not survive for the benefit of his legal representatives. There is no manner of doubt that late father of the respondent No. 1 had filed suit for partition of the joint properties. On his death right to sue survived and the respondent No. 1 being his daughter and legal representative was entitled to continue the suit in view of the provisions of Hindu Succession Act. The deceased who was a male Hindu, claimed interest in the joint properties which were subject matter of suit for partition. The record does not indicate that he had executed a Will though the appellant claimed that he had executed a Will in favour of `V’. The said `V’ did not apply for being impleaded as a party to the proceedings nor claimed interest in the properties of the deceased. He, having died intestate, his share in the joint properties woulddevolve by intestate succession as provided by Section 6 of the Hindu Succession Act, 1956. Section 8 of the said Act which deals with general rules of succession in the case of males, provides that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being relatives specified in Class I of the Schedule to the Act. A daughter is specified as one of the relatives in Class I of the Schedule. Therefore, there is no manner of doubt that the share of the deceased plaintiff in the suit properties would devolve upon her, if suit for partition is decreed. Rule 3 of Order XXII CPC stipulates that when a sole plaintiff dies and the right to sue survives, the Court on an application made in that behalf, should cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Thus, the respondent No.1 was entitled to be substituted in place of her deceased father. The record shows that she came to know later on that fraud had been committed while getting partition suit dismissed as withdrawn. Hence, she was entitled to file application for restoration of the suit. [Para 7] 2. The contention that having regard to the circumstances emerging from the record of the case the trial court should not have restored the partition suit on file, is devoid of merits. What is important to notice is that on similar grounds, namely, fraud committed while getting LPA dismissed as withdrawn, the said LPA was restored on file. It was held by the High Court that fraud was played upon the court while getting the LPA disposed of as withdrawn and, therefore, directions were given to the Registrar of the High Court to file criminal proceedings against two advocates and the appellant. The appellant never challenged the said order at all. The whole order of restoration of LPA was challenged before this Court, by two advocates, but the said challenge failed when SLP filed by them was dismissed. The trial Court, while deciding the application for restoration of suit, could not have afforded to ignore the findings recorded by the High Court while setting aside the order dismissing the LPA as withdrawn and the two orders passed by this Court. Once it was noticed by the trial court that LPA was restored on file on the ground that signature of late father of the respondent No. 1 was forged, it was duty bound to follow the reasons given by the High Court for restoring LPA on file. [Para 8] 3. The trial court restored the suit, which was got dismissed as withdrawn by fraud. The argument that the trial court had acted with material irregularity while restoring the suit when two applications which were dismissed for default were also restored and, therefore, the Revision filed by the appellant should have been allowed, is merely stated to be rejected. The supervisory jurisdiction of the High Court as incorporated in Section 115 CPC is intended to ensure that justice is done between the parties. The appellant who was beneficiary of fraud played upon the trial Court and the High Court would not be entitled to invoke discretionary jurisdiction of High Court under Section 115 CPC. Further in view of prayer made in the application, all the applications filed by the respondent No.1 were taken up for hearing together. [Para 9] 4. The record of the case show that the suit, which was filed in the year 1955 for partition of the joint properties, was permitted to be withdrawn and dismissed on the basis of so called application for withdrawal filed by father of the respondent No. 1. Before dismissing the suit as withdrawn, trial court had not issued any notice to the deceased plaintiff or his heirs more particularly when the advocate, who filed the suit for partition in the year 1955, was substituted by another advocate without obtaining consent from the advocate who was earlier representing the deceased. No attempt was made by the trial court to verify as to what prompted the original plaintiff to withdraw the suit, more particularly, when order of the High Court remanding the matter to the trial court for fresh decision was subject-matter of LPA. On the facts of the case, a grave error was committed by the trial court by dismissing the suit for partition as withdrawn. In terms of order XXIII Rule 1 CPC, it is the privilege of the plaintiff alone to withdraw the plaint at any stage of the proceedings and the appellant being only one of the defendants having played the fraud in getting the suit dismissed as withdrawn, has no locus to object to the restoration of the suit. The late father of the respondent No. 1 did not claim any exclusive title to the properties in himself. He claimed partition of the properties as one of the joint owners. Initially, the suit was not only decreed in his favour but also in favour of the third brother. It is well settled that in a suit for partition of the joint properties every defendant is also in the capacity of the plaintiff and would be entitled to decree in his favour, if it is established that he has the share in the properties. Therefore, the suit for partition of the joint properties, filed by the late father of respondent No. 1, could not have been dismissed as withdrawn without notice to another brother, who was also entitled to share in the properties. Taking over all view of the matter, no illegality or irregularity is committed by the High Court in dismissing the Revision Petition filed by the appellant. Therefore, no case is made out by the appellant to interfere with the order passed by the High Court. [Para 10] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8407 of 2009. From the Judgment and Order dated 29.3.2007 of the High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in Civil Revision No. 122 of 2005. Anoop G. Chaudhari, June Chaudhari, Prabhat Kumar Rai, Saud S.A. and Shakil Ahmed Syed for the Appellant. Sunil Gupta, T.N. Singh, K.K. Mohan and V.K. Singh for the Respondent.
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8407 OF 2009 (Arising out of S.L.P. (Civil) No. 8853 of 2007) Dwarika Prasad … Appellant Versus Nirmala and others …Respondents J U D G M E N T J.M. PANCHAL, J. Leave granted. 2. This appeal, by special leave, is directed … Continue reading
even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.
Crl.A. @ SLP(Crl.)NO.717/09 -1- REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2309 OF 2009 [Arising out of S.L.P.(Crl.) No.717 of 2009] Shabana Bano ….Appellant Versus Imran Khan ….Respondent J U D G M E N T Deepak Verma, J. 1. Leave granted. 2. Appellant Shabana Bano was married to the … Continue reading
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