//
archives

learned counsel

This tag is associated with 22 posts

from the provisions of Sections 60 to 63 of the N.D.P.S. Act, the Court shall decide the confiscation or the release of the properties either in case of acquittal or in case of conviction. But, at the same time, the order of the Court should be specific. Evidently, in this case, except passing an order that unmarked case property shall be destroyed, there is no specific order with regard to the property i.e., six vehicles, which were already released in favour of the appellant herein by virtue of the orders of this Court. 5. Therefore, the lower Court shall pass necessary order keeping in view the provisions of the N.D.P.S. Act, with regard to six vehicles, which were already released in favour of the appellant herein. So far as the other property is concerned, there is no need to interfere with the order of the lower Court with regard to destruction.

THE HON’BLE SRI JUSTICEN.R.L. NAGESWARA RAO     CRIMINAL APPEAL No.69 OF 2012     JUDGMENT:-   The appeal is filed by the 2nd accused questioning the judgment of the I Additional Sessions Judge, Medak at Sangareddy in NDPS Sessions Case No.44 of 2011, where-under after acquitting the accused some of the properties were ordered to … Continue reading

cross-examination of a prosecution witness is a valuable right conferred on an accused, and that right cannot be curtailed. As seen from the deposition of PW.10, it is as if he was cross-examined by the counsel for both A1 and A2 simultaneously. It is stated that the petitioner and A2 engaged separate counsel for defending their case. When A1’s advocate was not present, there was no cross-examination on the part of A1, and therefore, the trial Court ought to have given an opportunity to A1 to cross-examine PW.10. Insofar recalling PW.9 is concerned, he was already cross-examined by the counsel for A1, as seen from the deposition. So, there are no grounds to recall PW.9. Hence, the trial Court is directed to fix a date for the presence of PW.10 for the purpose of cross-examination by the learned counsel for A1.

THE HON’BLE SRI JUSTICEK.C. BHANU CRIMINAL PETITION No. 715 of 2012 ORDER: 1.       This criminal petition is filed under Section 482 Cr.P.C., challenging the order dated 22.12.2011, passed in Crl.M.P.No.1393 of 2011 in C.C.No.702 of 2007, on the file of the I-Additional Judicial Magistrate of the First Class, Khammam. 2.       The brief facts that are necessary for … Continue reading

workmen compensation =Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court. 14. Looking to the facts of the case, in our opinion, no legal issue is involved in these appeals and there is no reason to interfere with the findings arrived at by the High Court, which appear to be just and proper.

1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7170-74 OF 2005 S.M. SHARMILA …..APPELLANT. VERSUS NATIONAL INSURANCE CO.LTD. & ORS. …..RESPONDENTS. J U D G M E N T ANIL R. DAVE, J. 1. As issues involved in all these appeals are common, all the appeals are heard together … Continue reading

attachment of shares and sale of the same by directing the judgment debtor to produce shares certificates is not wrong=It is a matter of record that the shares held by the respondent in M/s.NFC were attached. The next step is to cause sale of shares. The garnishee i.e., company, in which the respondent had shares, expressed its inability to sell the shares, unless the share certificates are deposited. As a matter of fact, the executing Court ought to have taken those steps in E.A.No.1407 of 2007 itself. Atleast when the petitioner filed E.A.No.738 of 2008, it ought to have directed the respondent to produce the share certificates. The record discloses that on 08.06.2009, the executing Court allowed E.A.No.738 of 2008, but adjourned the matter to 29.06.2009 for production of shares. Instead of ensuring compliance, the executing Court had searched for a shortcut and on 16.06.2010, it has dismissed E.A. No.1407 of 2007; and on that basis, it dismissed E.A.No.738 of 2008. The approach of the executing Court is totally objectionable and this Court takes serious exception to the casual and callous manner, in which the matter was dealt with. It is on account of such attitude that the efficacy of the system is suffering a dent.

THE HON‘BLE SRI JUSTICE L.NARASIMHA REDDY Civil Revision Petition No.5591 of 2011 29.11.2011 Veeragandam Venkateswarlu Nerella Veeraswamy Counsel for the petitioner:Sri M.Sudhir Kumar Counsel for the respondent:Sri M.V.S.Suresh Kumar ORDER: It was not without reason that an adage got currency to the effect that the troubles of a plaintiff in a suit start after the … Continue reading

Indian Copyright Act, 1957; Ss.2 (k), 13, 17 and 52: Copyright in Law Report – Publishing of copy edited version of judgments, order and proceedings of Supreme Court by appellant – Copying by respondents – Claim of copyright in the publication/published work – Held: Originality in work is a requirement of copyright – It is a right to stop others from exploiting the work of owner without his consent – There is no copyright in the facts per se – All literary works have to be original/primary work for claiming such protection – However, derivative/secondary work would qualify for claiming such protection provided skill, labour and capital involved in its creation and creativity in the end product is such as to create a new work so as to make the creator of derivative work author of it – The Courts have only to evaluate as to whether the derivative work involved substantial amount of skill labour and capital and need not to evaluate the creative aspect of the same – Law Report of Supreme Court Judgments is derivative work – Reproduction of judgments in public domain do not infringe the copyright – Innovative thoughts are necessary to establish copyright in the judgments – Copy-edited judgments would not satisfy the claim of copyright merely by establishing the amount of skill, labour and capital put in the inputs of the copy edited judgments excluding innovative thoughts for creativity – But it should be such and sufficient to import to the judgments printed, some quality which original judgment does not possess and which differentiate the original judgment from the one printed in the Report – Though appellants improved the readability of judgment of the copy-edited judgment by doing considerable labour etc. but that does not meet the minimum requirement of creativity required for claiming copyright in it – However, creation of paragraph and classification of opinion of judges would require extensive reading and careful study of the subject – It also requires considerable knowledge, sound judgment and legal skill – Hence, appellants have copyright in it – Respondents are directed not to use the paragraphs and classification of Judges’ opinion as in the Report. Copyright Act – Object and scope of – Discussed. Principles: Principle of copyright – Applicability of. Supreme Court Judgments – Owner of for the purpose of copyright – Held: Government is the first owner of the copyright in the judgment. Words and Phrases: `Copyright Protection’ – Meaning of in the context of Copyright Protection Act, 1957. Literary works – Classification of. `Original work’ and `derivative work’ – Meaning of. Appellant is the publisher of a law report publishing therein orders, practice directions, record of proceedings, short judgments and Judgments of the Supreme Court of India. After the initial procurement of the judgments, orders and proceedings for publication from the Registrar, Supreme Court of India, the appellants make copy-editing of the judgments, orders and record of proceedings procured and various inputs are put in the judgments and orders by making an addition of cross-references, formatting of the text, paragraph numbering, verification etc. to make them user friendly. The appellants also prepare the headnotes, which require considerable amount of skill, labour and expertise. And for the said work a substantial amount of capital expenditure on infrastructure, such as office equipments, computers and for maintaining extensive library, besides recurring expenditure on both the management of human resources and infrastructural maintenance has been made by the appellants. Appellants alleged that the Law Report, so prepared, constitutes an `original literary work’ in which copyright subsists in terms of Section 13 of the Copyright Act, 1957 and thus the appellants alone have the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act. Any scanning or copying or reproduction done of or from the Reports or pages or paragraphs or portions of any volume of the Report by any other person, is an infringement of the copyright in the Report within the meaning of Section 51 of the Act. Appellants further alleged that respondent No. 2, another publisher, has brought out a software called “Grand Jurix” published on CD-ROMs and the other respondent, also a publisher, has brought out software package called “The Laws” published on CD-ROMs; and that all the modules in the respondents’ software packages have already been lifted verbatim from their work; copied the sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in the Law Report, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.; and such acts of the defendant-respondents constitute infringement of the appellants’ exclusive right to the same. The appellants moved the High Court for issuance of temporary injunction by filing applications in the Suit against the respondents. Single Judge of the High Court dismissed the applications for interim injunction. However, before the Single Judge, the respondents conceded that the appellants have copyright in the headnotes and as such they undertook not to copy these headnotes in their CD-ROMs. Aggrieved by the order of the Single Judge of the High Court refusing to grant interim injunction, the appellants preferred appeals before a Division Bench of the Delhi High Court and the applications praying for interim relief were also filed in both the appeals. The applications praying for the interim relief were disposed of by the Division Bench of the High Court directing that during pendency of the appeals the respondents would be entitled to sell their CD-ROMs with the text of the judgment of the Supreme Court along with their own headnotes which should not in any way be a copy of the headnotes and the text of the plaintiff-appellants. Disposing of the matter, the Division Bench of the Delhi High Court held that the appellants were not the author of the Supreme Court judgments and by merely making certain corrections therein or giving paragraph numbers, the character of a judgment does not change and it does not become materially different from the original judgment; that once a person has a right to obtain certified copy of the judgment from the Registry of the Court and to publish it, it cannot be said that others have no right to take text of the judgment from the journal where it is already reported; that the act of reproduction of any judgment or order of the Court, Tribunal or any other judicial authority under Section 52(1)(q) of the Copy Right Act, is not an infringement of the copyright. Any person can, therefore, publish judgments of the Courts, however, there would be copyright in the headnotes to the judgments prepared by the appellants. So far as footnotes and editorial notes are concerned, it cannot be denied that these are the publisher’s own creations and based on publisher’s own research and, thus, will have a copyright of the appellants. Hence, the Division Bench modified the judgment of the Single Judge by allowing the respondents to sell their CD-ROMs with the text of the judgments of the Supreme Court along with their own headnotes, editorial notes, if any, which should not in any way be copy of the headnotes of the appellants. Thus, the High Court has not accepted the case of the appellants that they have a copyright in the copy-edited judgments of the Supreme Court. Hence the present appeals and the Contempt Petition. In the present case, the questions which require determination by the Court were as to what shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work and as to whether the appellants would be entitled for a copyright as an original literary work in the entire version of the copy-edited text of the judgments published in the appellants’ law report or as to whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text. Appellants contended that the copyright subsists as a law report in their publication `SCC’ as a whole based cumulatively and compendiously on all the substantial contributions of skill, labour and capital in the creation of various parts of the Report; that the copyright subsists in the copy-edited version; that they do not claim copyright in the raw text of the judgments, certified copies of which are being obtained from the Registry; that they do not claim a monopoly in publishing judgments of the Supreme Court as they are being published by other publishers also without copying from each other publication; that their copyright is in the copy-edited version of the text of judgments as published in SCC which is a creation of their skill, labour and capital and there are contributions/inputs/ additions in creating the version of the text of judgments as published in the report; that Section 52(1)(q)(iv) of the Act does not bar the recognization of copyright in the copy-edited version of the text of judgments of the courts as published in law reports; that the Government is the first owner of copyright in the judgments of the courts as per Section 2(k) read with Section 17 and Section 52(1)(q)(iv) of the Act provides that any person wanting to reproduce or publish judgments would not infringe the copyright of the Government, but Section 52(1)(q)(iv) does not imply that in case a person has expended independent skill, labour and capital on the judgments of the courts to create and publish his version of the judgments, any other person is free to copy that person’s version of the judgments, substantially or in its entirely; that Copyright subsists in the copy-edited version of the text of judgments of the courts as published in law reports, which have been created by the application of skill, labour and capital which is not trivial or negligible; that the inputs put in the copy-edited judgments in SCC, is a derivative literary work created from pre-existing material of the judgments of the court which is in public domain; that the exercise of independent skill, labour and capital in its creation by the author of such work, and the derivative literary work so created is by their independent skill, labour and capital, which gives them copyright in such creations; that it is not necessary that work created should have a literary merit; that the courts can only evaluate whether the skill, labour and capital actually employed, required in creating the work, is not trivial or negligible; that in deciding whether a derivative work qualifies for copyright protection, it must be considered as a whole, and it is not correct to dissect the work into fragments and consider the copyrightability of each such fragment piecemeal and individually apart from the whole; and that the respondents if wish to reproduce or publish a work already in public domain was obliged to go to the public domain/common source of such work rather than misappropriating the effort and investment of the appellants by copying the version of such work which was created by them by their independent expenditure of skill, labour and capital. Respondent submitted that the judgment of the court is a Government work as defined under Section 2(k)(iii) of the Act; that on account of Section 17 (d) of the Act, the Government in the absence of any agreement to the contrary be the first owner of the copyright therein; that in terms of Section 52(1)(q)(iv) of the Act, publication of the judgments of the apex court by the respondents would not tantamount to infringement of the copyright of the appellants; that the judgments published in the Supreme Court Cases is nothing but merely a derivative work based upon the judgments of the court, which lacks originality as it does not depict independent creation even a modicum of creativity; that the inputs put by the appellants is nothing but expressing an idea which can be expressed in a limited way and as such there cannot be a copyright in it; that filling the blanks or gaps by providing names of the parties or citations of the judgments, both of which are well known and unchangeable parts of that idea, are not original work to warrant copyright protection, either singly or in combination; and that the additions made in the reported judgment by the editors of the Report are only the well known extensions of the reported decision. These extensions lack even the minimal degree of author’s creativity or originality or intellectual labour nor does it create additional knowledge, the protection of which is the very basis of the copyright protection. Respondents in the connected Civil Appeal submitted that there is a distinction between a `law report’ as understood in England and a `law journal’ as printed in India; that the appellants’ journal `SCC’ is not a law report in the strict sense, inasmuch as it reproduces the judgments of the court verbatim along with inputs. However, a law report known in the traditional English sense is when a law reporter present in the court would record in his own words and language the arguments of the counsel on both sides, give a summary of the facts and incorporate into the said report his transcript of the speech of the Judge. Thus, the appellants’ work could only be a law journal and not a law report; that the judgments were specifically made a part of the exception to copyright infringement and thus find place in Section 52(1)(q) of the Act; that for claiming protection of copyright in a derivative work, under the Indian law originality is a pre-condition and originality means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity; that reporting of the judgments of the Supreme Court with certain inputs could only be said to be a discovery of facts already in existence; that to create a copyright by alterations of the text, these must be extensive and substantial practically making a new version; that the copy-editing inputs of the appellants are only discoveries/facts and there are limited ways/unique of expressing the various copy- editing inputs and thus no copyright can subsist in such limited/unique expressions; that the facts which are discovered could be expressed in limited ways and as such ways adopted cannot give copyright protection to the inputs or the judgments as a whole; that recognizing the copyright in the copy-edited version of the law reports would amount to giving the appellants a monopoly in the judgments of the courts which is against the intendment of Section 52(1)(q)(iv) and would defeat the purpose of putting judgments in the public domain; that for a derivative work, the originality test as applied in United States Supreme Court should be made applicable whereby the author of a derivative work would satisfy that the work has been produced from his exercise of skill and judgment; and that the exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized a purely mechanical exercise. The work should be independently created by the author as opposed to copied from the other works and that it possesses at least some minimal degree of creativity. =Partly allowing the appeals, and disposing of the Contempt Petition, the Court HELD: 1.1. The copyright protection finds its justification in fair play. When a person produces something with his skill and labour, it normally belongs to him and the other person would not be permitted to make a profit out of the skill and labour of the original author and it is for this reason the Copyright Act gives to the authors certain exclusive rights in relation to the certain work referred in the Act. The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. (Para – 8) [229-D-E-F] 1.2. Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting the matters in public domain. It is a well-accepted principle of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they originated with the author of any work which embodies these facts. (Para – 8) [229-F-G-H; 230-A] 1.3. For copyright protection, all literary works have to be original as per Section 13 of the Act. Broadly speaking, there would be two classes of literary works : (a) primary or prior works: These are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and (b) secondary or derivative works: These are literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are called derivative work or secondary work. (Para -13) [234-F-G] 2. In many cases, a work is derived from an existing work. Whether in such a derivative work, a new copyright work is created, will depend on various factors, and would one of them be only skill, capital and labour expended upon it to qualify for copyright protection in a derivative literary work created from the pre-existing material in the public domain, and the required exercise of independent skill, labour and capital in its creation by the author would qualify him for the copyright protection in the derivative work. Or would it be the creativity in a derivative work in which the final position will depend upon the amount and value of the corrections and improvements, the independent skill and labour, and the creativity in the end-product is such as to create a new copyright work to make the creator of the derivative work the author of it; and if not, there will be no new copyright work and then the original author will remain the author of the original work and the creator of the derivative work will have been the author of the alterations or the inputs put therein, for their nature will not have been such as to attract the protection under the law of copyright. (Para – 14) [235-G-H; 236-A-B-C] 3.1. In the absence of any agreement to the contrary, the Government shall be the first owner of the copyright in the judgments of the Supreme Court, the same being a Government work in terms of Section 2(k) of the Act. (Para – 13) [235-C-D] 3.2. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited. (Para – 13) [235-E-F] 4.1. The reports in the Supreme Court Cases (SCC) of the judgments of the Supreme Court is a derivative work in public domain. (Para – 38) [257-H; 258-A] 4.2. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author’s work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. (Para – 38) [258-B-C-D-E] 4.3. To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in the Report, SCC, some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the 1957 Act, the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. It is clarified that the decision of this Court would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. (Para – 38) [258-E-F-G-H; 259-A] Feist Publications Inc. v. Rural Telephone Service Co. Inc., 18 USPQ 2d. 1275; Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc., 945 F.2d.509; Macmillan and Company v. K. and J. Cooper, 1924 Privy Council 75; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada) – referred to. 5.1. No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of the Report, SCC, would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. (Para – 40) [260-E-F-G-H; 261-A-B] 5.2. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. The inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright. (Para – 40) [261-C-D] 5.3. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. (Para – 41) [261-F-G-H; 262-A-B] 5.4. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. This exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby different Judges’ opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in the Report, the appellants have a copyright and nobody is permitted to utilize the same. (Para – 41) [262-B-C-D-E] 6. The High Court has already granted interim relief to the plaintiff-appellants. It is further directed that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor’s judgment regarding the opinions expressed by the Judges by using phrases like `concurring’, `partly dissenting’, etc. on the basis of reported judgments in SCC. The judgment of the High Court is modified to the extent that in addition to the interim relief already granted by the High Court. (Para – 42) [262-F; G-H; 263-A] 7. In view of the decision so rendered, it is not necessary to pass any order on the contempt petition. The contempt petition stands disposed of accordingly. (Para – 43) [263-B] Raju Ramachandran, Sudeep Mallik, Anitha Shenoy, Saurab Sinha, Rishad Ahmad Chowdhury, Raj Shekhar Rao, M.R. Vij, Nitin Ramesh, Samar Bansal, S.K. Mohanty, Lokesh Kumar, M.K. Garg, Pratibha M. Singh, Gaurav Sharma, Bishwajit Dubey, Shruti Kakker, Sumeet Bhatia and Maninder Singh for the Appearing parties. =2008 AIR 809 , 2007(=13 )SCR182 , 2008(1 )SCC1 , 2007(14 )SCALE191 ,

THE HONOURABLE SRI JUSTICE P.S.NARAYANA C.R.P. NO.2801 OF 2006 11-06-2007 Kesari Goutham Reddy Velpula John Victor Macaulay Respondent/Appellant. 2.Yellampalli Sobhadevi Counsel for the Petitioner : Sri Prabhakar Peri Counsel for the Respondent : Sri S.Srinivas Reddy :ORDER: Heard Sri Prabhakar Peri, the learned counsel representing the revision petitioner-proposed party and Sri S.Srinivas Reddy, the learned … 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. Code of Civil Procedure, 1908: Order I Rule 8 – Suit filed alleging that the defendants had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment – Trial court decreed the suit and issued permanent injunction directing removal of unauthorized construction – Decree challenged, on the ground that the suit was bad for non-compliance of the provisions of Order I Rule 8 – Held: Apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected – Since the affected person himself had filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 – Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and in such a suit he need not comply with the requirements of Order I Rule 8 – In that view of the matter, the suit filed was maintainable. Suit filed by respondents alleging that the defendants had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment – Trial court decreed the suit and issued permanent injunction directing removal of unauthorized construction – Decree affirmed by First Appellate Court as also High Court – Challenge to, on the ground that it was not proved that the suit land was a public street in which encroachment was made by the appellant-defendant – Held: On appreciation of the evidence, all the three courts below namely the High Court, the First Appellate Court as also the trial court held that the disputed suit land is a part of the public street where the appellant had encroached upon – The aforesaid findings are findings of fact – The evidence on record proved that there existed a public street of 10 feet width and also that the appellant had encroached upon the suit property consisting of the aforesaid street of 10 feet width – Decree passed by the trial court accordingly confirmed. The respondents filed civil suit alleging that appellant-defendant and another defendant had made illegal / unauthorized construction over a 10 feet wide public street by way of illegal encroachment, and accordingly prayed for mandatory injunction against the defendants. The trial court decreed the suit and issued permanent injunction directing the removal of unauthorized construction. The judgment and decree passed by the trial Court was affirmed by the First Appellate Court (Additional District Judge), and further affirmed by the High Court in second appeal. In the instant appeal, the appellant challenged the judgments and decrees passed by the courts below on three grounds, viz. 1) that the suit itself was barred by limitation; 2) that the suit was bad for non-compliance of the provisions of Order I Rule 8 of the CPC and 3) that no official document was placed and no official witness was examined to prove and establish that the suit land was a public street in which encroachment was made by the appellant. =Dismissing the appeal, the Court HELD:1.1. The records placed disclose that the appellant in his written statement took up a plea that the suit is barred by limitation. However, despite the said fact no issue was framed nor any grievance was made by the appellant for non-framing of an issue of limitation. The appellant did not make any submission before the trial court and the first appellate court regarding the plea of limitation. The said plea was made before the High Court which held that although such a plea was not raised either before the trial court or before the appellate court, the same could be raised before the High Court in view of the provisions of Section 3 of the Limitation Act which places an obligation upon the Court to discuss and consider such a plea despite the fact that no such plea was raised and argued before the Trial Court as also before the First Appellate Court. The High Court after considering the aforesaid plea held that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exists a continuing cause of action. The records disclose that initially a complaint under Section 133 of Cr.PC was filed which was pursued with all sincerity upto the High Court. But the High Court held that the dispute between the parties could be better resolved if a proper civil suit is filed and when evidence is led with regard to the disputed questions of fact. Immediately thereafter the aforesaid suit was filed seeking issuance of a mandatory injunction. In view of the aforesaid facts and also in view of the fact that encroachment on a public street by any person is a continuing cause of action, there is no merit in the said contention. [Paras 15, 16, 17] [1086-G-H; 1087-A-E] 1.2. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury. [Para 18] [1087-F-H; 1088-A] 1.3. Section 22 of the Limitation Act, 1963, provides that “in case of a continuing breach of contract or in case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.” In an earlier case, this court had held that when a right of way is claimed whether public or private over a certain land over which the tort-feaser has no right of possession, the breaches would be continuing, to which the provisions of Section 22 of the Limitation Act, 1963, would apply. Therefore, the plea that the suit is barred by limitation has no merit at all. [Para 19] [1088- C-E] Sankar Dastidar v. Shrimati Banjula Dastidar and Anr., AIR 2007 SC 514 – relied on. 2. Apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since the affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non- compliance of the provisions of Order I Rule 8 of the CPC. Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and in such a suit he need not comply with the requirements of Order I Rule 8 CPC. In that view of the matter, the suit filed by the plaintiff/respondent No. 1 was maintainable. [Paras 20, 22 and 23] [1088-F-G; 1089-B-D] Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur v. Smt. Chhoti and Ors., AIR 1990 SC 396 – referred to. 3.1. The suit was initially instituted against two defendants. The appellant was defendant No. 2 in the said suit. So far as defendant No. 1 is concerned, the records disclose that the Panchayat of the area took a decision that both of them have encroached upon a public property and the street and therefore they should remove the encroachment. It is disclosed from the records that pursuant to the aforesaid decision of the Panchayat, the defendant No. 1 removed his encroachment after admitting that he had also encroached upon some area of the 10 feet wide street which fact he admitted before the panchayat and later on he removed the said encroachment. The aforesaid fact is established from the statements of PW-1, PW-5 and PW-6 who were present and participated in the said Panchayat and also corroborated the said admission before the Panchayat. [Paras 24] [1089-E-H; 1090-A] 3.2. In all 8 witnesses were examined by the plaintiff respondent No.1. PW-3, who was examined in the suit proved the report of the BDO who had visited the disputed property on 18.1.1995 after which he also submitted a report certifying that an encroachment has been made by the appellant over the disputed street. PW-4, the original owner of the entire area, had specifically stated in his evidence that he had carved out a colony in the year 1981-82 and he had sold the plots to the plaintiff as well as defendants and other inhabitants of the village and towards eastern side of the plot of the defendant/appellant he had left a street of 10 feet width. As against the aforesaid evidence adduced on behalf of the plaintiff/respondent No. 1, the appellant examined himself as DW-1 wherein he only took a stand that disputed property is not a part of the street and that after purchasing the plot he had constructed the house and despite the said fact no objection was taken and therefore it cannot be said that he had constructed a house also on a part of the said disputed suit property. On appreciation of the aforesaid evidence, all the three courts namely the High Court, the First Appellate Court as also the trial court held that the aforesaid disputed suit land is a part of the public street where the appellant has encroached upon by constructing a part of the house. The aforesaid findings are therefore findings of fact. Public Officer namely Patwari was examined who had proved the report submitted by the BDO stating that part of the suit property is a public street. [Paras 26, 27] [1090-E- G] 3.3. The site plan (Ext. PW-7A) filed by the plaintiff/respondent proves and establishes that there is a public street of 10 feet width. In all the sale deeds of the area as disclosed from the statement of PW-4, the aforesaid street of 10 feet width is shown and the aforesaid evidence go unrebutted. Thus there exists a street of 10 feet width. It is also proved from the evidence on record that the appellant has encroached upon the suit property consisting of the aforesaid street of 10 feet width. That being the position, there is no infirmity in the judgment and decree passed by the Trial Court and affirmed by the First Appellate Court and by the High Court in the Second Appeal. [Para 28] [1090-H; 1091-A-B] 4. The decree passed by the trial court is confirmed. If the appellant fails to vacate and remove the unauthorized encroachment within a period of 60 days, it will be open for the plaintiff/respondent No. 1 to get the decree executed in accordance with law. [Para 29] [1091-C-D] Case Law Reference: AIR 2007 SC 514 relied on Para 19 AIR 1990 SC 396 referred to Para 21 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1042 of 2011. From the Judgment and Order dated 31.07.2009 of the High Court of Punjab and Haryana at Chandigarh in RSA No. 2698 of 2008. Anoop G. Choudhary and J. Chaudhary, Devendra Kr. Singh, Ajay A. and Prem Sunder Jha for the Appellant. Jasbir Singh Malik, Ekta Kadian, Devender Kumar Sharma and S.K. Sabharwal for the Respondents

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1042 OF 2011 [Arising out of SLP (C) No. 35813 of 2009] HARI RAM ….Appellant Versus JYOTI PRASAD & ANR. … Respondents JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. Leave granted. 2. By this judgment and order, we propose to dispose of … Continue reading

Criminal Law : Criminal Procedure Code, 1973 : Sections 227, 228 and 219. Accused-Discharge of or framing of charges against-Tests to determine-Held : Court had to sift evidence on record only for the limited purpose of finding out whether a prima facie case was made out against the ac-cused-At that stage Court was not required to sift the evidence for arriving at the conclusion that it would not lead to conviction-In the circumstances of the case, the High Court erred in seeking independent corroboration to the version of the complainants in discharging the accused-Case remitted to trial court to proceed further in accordance with law-Trial Court was further directed to consider afresh whether the charge was required to be altered or amended so as to make it consistent with S. 219. Penal Code, 1860 : Section 376. Accused-Complaint against-For committing rape on 3 girls at different times-High Court discharged accused on grounds that he was a saintly old man who had thousands/millions of disciples all over India and that there was delay on the part of the rape victims in disclosing those illegal acts to their parents and police-Held : High Court erred in discharging the accused merely on such grounds-Rape victims, while making complaint to the police, were not required to give detailed explanations. Section 376-External injuries-Absence of-On the person of the prosecutrix- Held : Version of the prosecutrix could not be described as false on such a ground. The accused, a spiritual teacher, was charged under Section 376 of the Indian Penal Code, 1860 for committing rape on 3 girls at different times. The application for discharge of the accused was dismissed. But the High Court discharged the accused on the grounds that the accused was a saintly old man, who had renounced the world, who was engrossed in spiritual activities and who had thousands millions of disciples all over India and, therefore, was not likely to indulge in the illegal acts alleged against him. The High Court further held that a saintly old man would not commit sexual intercourse with the pracharak of his cult in the presence of his disciples; that the conduct of the victims and the delay in disclosing the illegal acts to their parents and the police showed that the girls had leveled false allegations against the accused; that there was no independent corroboration of the story of the victims and that the absence of external injuries on the person of the prosecutrix showed that her version was false. Hence this appeal. On behalf of the appellant-State it was contended that the High Court far exceeded the limits of consideration at the stage of Section 227 of the Criminal Procedure Code, 1973; and that the High Court committed error in sifting and weighing the material placed before the Court by applying the standard of test and proof which was to be applied finally for deciding whether the accused was guilty or not. =Allowing the appeal, this Court HELD: 1.1. At the stage of Sections 227 and 228 of the Criminal Procedure Code, 1973 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 disclose the existence of all the in-gredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence, as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. [939-D-G] 1.2. What the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. The High Court was wholly wrong in discarding the material placed before the Court as false and discharging the accused on that ground. [943-C-F] Niranjan Singh Punjabi v. Jitendra Bijjaya, [1990] 4 SCC 76, relied on. State of Punjab v.Jagir Singh, AIR (1977) SC 2407, held inapplicable. Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229, referred to. 13. The Sessions Court is directed to proceed further with the trial in accordance with law and to consider afresh whether the charge is required to be altered or amended so as to make it consistent with Section 219 of the Code. 2.1. In the present case, the High Court was much influenced by the submission made on behalf of the defence that the accused is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousands/millions of disciples all over India would commit sexual inter- course with the pracharak of his cult in the presence of his disciples stands vitiated because of the vice of misreading the statements. The three rape victims have nowhere stated in their statements that the accused had sexual intercourse with them in the presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertain-ties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements they were not required to give detailed explanations. 2.2. It was also improper on the part of the High Court to describe the version of the prosecutrix as false because no external injuries were noticed on her person while she was examined by a doctor. Modi: “Medical Jurisprudence and Toxicology”, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 263 of 1997.

PETITIONER: STATE OF MAHARASHTRA Vs. RESPONDENT: PRIYA SHARAN MAHARAJ & ORS. DATE OF JUDGMENT: 11/03/1997 BENCH: G.N. RAY, G.T. NANAVATI ACT: HEADNOTE:JUDGMENT: J U D G M E N T NANAVATI Leave granted. Heard the learned counsel. On 11.5.91, one Purushottam Wasudeo Deshpande lodged a complaint at the Dhantoli Police Station, Nagpur that his two … Continue reading

Pleadings -Written Statement-Direction for filing within specific time-Delayed filing-Due to bona fide mistake of the party-On realization of the mistake application made to extend the time for filing-Rejection of application-On appeal, held: The party entitled to extended time for filing since his bona fide proved-Code of Civil Procedure, 1908-Order VIII. Civil Judge had dismissed the petition for restoration of the suit which had been decreed ex- parte. First appeal thereagainst was allowed on payment of cost, with direction to the appellant to file the Written Statement within 2 weeks. According to the appellant he was informed by his advocate that Written Statement was to be filed within 2 months. Accordingly he filed the Written Statement within 2 months and also offered the cost. The counsel for the other party refused to accept the cost on the ground of delayed payment. On going through the certified copies, appellant noticed that the time granted by High Court was 2 weeks and not 2 months. Hence he moved the High Court seeking extension of time. The same was dismissed summarily. Hence the present appeal. =Allowing the appeal, the Court HELD: The appellant had indicated sufficient reasons as to why there was non-compliance with the order of the High Court. The bona fides have been spelt out in detail and, in fact, there was no reply denying the averments made by the plaintiff who was the opposite party no. 1 in the application. That being so, the High Court was not justified in summarily rejecting the application. [Paras 9 and 10] [631-E-F] S.N. Bhat for the Appellant.

CASE NO.: Appeal (civil) 5809 of 2000 PETITIONER: M. Vishweshwara Shastry RESPONDENT: M. Gopalakrishna Bhat & Ors DATE OF JUDGMENT: 07/03/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J U D G M E N T Dr. ARIJIT PASAYAT, J. Appellant calls in question legality of the order passed by a learned Single … Continue reading

agency area and agency courts= the suits are to be instituted before the specialized authorities in agency areas, the procedure for adjudication of those suits is similar to the suits filed under C.P.C. Issues are required to be framed, based upon the pleadings, the parties are permitted to adduce evidence and the concerned authority discharging the functions of the Court can render its judgment. In the instant case, the appellants herein presented a plaint claiming the relief of perpetual injunction. The respondents on their part filed a written statement. The Agent to Government ought to have framed an issue and then permitted the parties to adduce evidence. Instead, a report was called for from the Tahsildar. Such a course is totally impermissible in law. To certain extent, the appellants had also contributed for the improper disposal of the appeal. Based upon the report submitted by the Tahsildar, the appellants have amended the plaint schedule. Taking these developments into account, the Agent to Government dismissed the suit, leaving it open to the appellants to pursue the further remedies. The procedure adopted by the Agent to Government was not at all correct. He ought to have permitted the parties to adduce evidence and then decide the matter on merits. There was absolutely no justification to dispose of the suit without recording any evidence. On this short ground, the A.S. is allowed and the order under appeal is set aside. The matter is remanded to the Agent to Government, Kakinada for fresh consideration and disposal on merits, after recording evidence.

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY   A.S.No.1014 of 2010   JUDGMENT:   The parties hail from a scheduled area in East Godavari District.  The appellants filed O.S.No.10 of 2008 before the Agent to Government, East Godavari District at Kakinada against the respondents for the relief of perpetual injunction in respect of land admeasuring Ac.4.00 in … Continue reading

1. Whether the plaintiff acquired title to the schedule lands by adverse possession? 2. Whether the plaintiff is entitled to protect his possession under law and whether he can claim positive relief of perpetual injunction in his favour in a suit filed by him?=a person who obtained the possession of the property under executory terms of contract of sale, cannot ask for declaration of his title even on the ground that he remained in possession of the property for more than 12 years period and contending that his possession is adverse to the real owner. The Apex Court said in the above two judgments that possession of such person cannot be adverse and he cannot set up the plea of adverse possession. Therefore, in my view the trial court has fallen into error in declaring the title of the plaintiff holding that he perfected his title to the schedule mentioned property by adverse possession against the defendants 1 and 2 who are the real owners and defendants 3 and 4 who are the subsequent purchasers. However, by virtue of the doctrine of part performance embodied in Section 53-A of the Transfer of Property Act, the plaintiff can protect his possession from defendants 1 and 2 who sold the property to him under the simple sale deed, so also he can protect his possession from defendants 3 and 4 who have knowledge of the earlier sale transaction in his favour under Exs.A-1 and A-1(a) sale deed. It is argued before me by the learned counsel appearing for the defendants that the plaintiff having recourse to the doctrine of part performance can only protect his possession but he cannot file a suit for simple injunction by his positive act seeking a decree in his favour. It is true that Section 53-A only operates as a bar against the defendants in the present case from enforcing any rights against the plaintiff other than those which were provided under Exs.A-1 and A-1(a) simple sale deed. Although the section does not confer title on the person who took possession of the property in part performance of the contract, the law is now well settled that when all conditions of the section are satisfied as in the present case, the possession of the person must be protected by the court whether he comes as a plaintiff or defendant. The only embargo is that Section 53-A cannot be taken in aid by the transferee to establish his right as owner of the property. But the transferee can protect his possession having recourse to Section 53-A either by instituting a suit for injunction as a plaintiff or by defending the suit filed by the transferor or subsequent purchasers as a defendant. It is also well settled that the transferee can very well file a suit for injunction to protect his possession even though his remedy to file a suit for specific performance of contract is barred by limitation.no adverse possession. injunction for protection can be granted

THE HON’BLE SRI JUSTICE R.KANTHA RAO A.S. No.713 OF 1993 08-06-2011 M.Gopal and another K.Janga Reddy and another Counsel for petitioners: Sri Yadaiah Counsel for respondents:Sri K.Raghuveer Reddy :JUDGMENT: This appeal is filed against the judgment and decree dated 24.08.1992 passed by the Subordinate Judge at Sanga Reddy in O.S.No.49 of 1986. I have heard … Continue reading

Blog Stats

  • 2,883,999 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com