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Interpretation of clause in the agreement of sale – Excise duty notice calling upon erst while owner is quashed =Excise dues are not the statutory liabilities which arise out of the land and building or the plant and machinery. = “all these statutory liabilities arising out of the land shall be borne by purchaser in the sale deed” and “all these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement of Sale.” As per the High Court, these statutory liabilities would include excise dues. We find that the High Court has missed the true intent and purport of this clause. The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilities “arising out of the land” or statutory liabilities “arising out of the said properties” (i.e. the machinery). Thus, it is only that statutory liability which arises out of the land and building or out of plant and machinery which is to be discharged by the purchaser. Excise dues are not the statutory liabilities which arise out of the land and building or the plant and machinery. Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture. This fine distinction is not taken note at all by the High Court.= We thus conclude that the judgment of the High Court is unsustainable in law. Accordingly, the appeal is allowed and the impugned judgment of the High Court is set aside. As a consequence the notice of the Excise Department calling upon the appellant to pay the dues of the erstwhile owner of the unit in question also stands quashed. The appellant shall also be entitled to cost of this appeal.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40655 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6802/2013 (arising out of SLP(civil) No. 15278 of 2012) M/s. Rana Girders Ltd. …..Appellant Vs. Union of India & Ors. ….Respondents J U D G M E N T A.K.SIKRI,J. 1. Leave granted. 2. One … Continue reading
Hindu Law-Gift of ancestral property by the father in favour of his daughters through registered settlement deed-Father later claiming that the settlement deed got executed by misrepresentation and fraud-Plea by father that his signature was obtained as a witness to a sale deed and not for execution of settlement deed and that he has no capacity to gift to his daughters the Joint family property-Suit by daughters for permanent injunction for restraining the father from interfering with peaceful possession-Trial Court dismissed the suit-Confirmed by First Appellate Court and High Court Held, on facts and evidence, the gift was not vitiated by fraud and misrepresentation-Further, father has capacity to gift ancestral property to daughters to a reasonable extent. The respondent, by a registered settlement deed, settled the suit property to his appellant-daughters out of natural love and affection for them. After 5 years, the respondent asked the appellants to vacate the property and tried to trespass into the property. The appellants filed a suit for permanent injunction before trial court for restraining the respondent and his associates from interfering with the appellant’s peaceful possession and enjoyment of the suit property. The respond-ent resisted the suit contending that the suit property was an ancestral property; that settlement deed was not executed in favour of the respondents; that the appellants misrepresented the respondent taking advantage of his addiction to liquor for signing the sale deed of the property purchased by the appellants as an attesting witness and instead got the settlement deed signed. The trial court dismissed the suit of the appellants holding that the settlement deed was got executed by misrepresentation and that the respondent had no power to make a gift of a part of his ancestral properties in favour of his daughters. This was confirmed by the first appellate court and the High Court. In appeal, the appellants contended that the finding of fact by the lower courts regarding execution of settlement deed is vitiated due to misreading of the statement of one of the attesting witnesses: that the respondent, being the karta of the Joint Hindu family had the authority to make a gift of ancestral immoveable property to a reasonable extent to his daughters. The respondent contended that he had no authority to gift the only ancestral property possessed by the family in favour of his daughters. Citation: 2004 AIR 1284,2003(6 )Suppl.SCR605 ,2004(1 )SCC295 ,2003(10 )SCALE600 ,2003(10 )JT289= Allowing the appeal, the Court HELD : 1.1. Finding recorded by the trial court clearly shows that the court misread and misconstrued the testimony of the attesting witness PW 2. In his deposition, PW 2 has clearly stated that he was invited by the respondent to be a witness. He has nowhere stated that the respondent was taken for affixing signatures as witness. If respond-ent was to be a witness, then there was no need to ask PW2 and other witness to accompany the respondent or for them to sign the document. PW 2 also deposed that the respondent affixed his signatures on the settlement deed (Ex Al) after reading the same, that he has signed Exhibit Al as a witness and that he knew the respondent. Suggestion put to him that signatures of the respondent on Exhibit Al were obtained by threat was denied. The trial court did not refer to this part of testimony of PW 2 at all. In the cross- examination, PW 2 has stated that the fact that the respondent had invited him for signing as a witness has been read to him as if PW 2 had stated that the respondent was taken for affixing signatures as a witness to some documents on the date when the deed of settlement Exhibit Al was executed. This is a clear misreading of the testimony of PW 2. The trial court also failed to note that the evidence of respondent lacked total credibility especially in the light of his conduct in denying his signature on the settlement deed, vakalatnama as well as on the summons served on him. Projection made by the respondent in his testimony that the appellants taking advantage of the fact that he was a drunkard got the settlement deed signed fraudulently cannot be accepted. Respondent took no steps to get the settlement deed cancelled though, the appellants had been living in the house for five years after the execution of the settlement deed. In his statement he does not say that he did not know about the execution of the settlement deed. Plea taken by him that he was taken to the Sub-Registrar’s office to be a witness to a sale deed by his son-in-law cannot be accepted as it has not been proved on record that the respondent’s son-in-law had in fact purchased any house site. Findings recorded by the trial court and upheld by the First appellate court and the High Court based on misreading of evidence are liable to be set aside. The findings recorded on misreading of evidence being perverse cannot be sustained by law. [612-E-H; 613-A-D] 2.1. A father can make a gift of ancestral immoveable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his, daughter at the time of her marriage or even long after her marriage. [617-E-F] 2.2. Question as to whether a particular gift is within reasonable limits or not has to be judged according to the status of the family at the time of making a gift, the extent of the immoveable property owned by the family and the extent of property gifted. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. The answer to such a question would vary from family to family. The question of reasonableness or otherwise of the gift made has to be assessed vis-a-vis the total value of the property held by the family. Simply because the gifted property is a house, it cannot be held that the gift made was not within the reasonable limits. It is basically a question of fact. If on facts, it is found that the gift was not within reasonable limits, such a gift would not be upheld. It was for the respondent to plead and prove that the gift made by the father was excessive and unreasonable keeping in view the total holding of the family. In the absence of any pleadings or proof on these points, it cannot be held that the gift made in this case was not within the reasonable limits of the property held by the family. The respondent has failed to plead and prove that the gift made was to unreasonable extent keeping in view, the total holding of the family. The first appellate court and the High Court thus erred in non-suiting the appellants on this account. [617-G-H; 618-A-E] 2.3. The respondent had the capacity to make a gift to a reasonable extent of ancestral immoveable property in favour of his daughters. The gift was not vitiated by fraud of misrepresentation. The appellants are held to be the absolute owners or the suit property and the respondent is injuncted from interfering with the peaceful possession and enjoyment of the suit property by the appellant perpetually. [618-F-G] Kamala Devi v. Bachulal Gupta, [1957] SCR 452; Guramma Bhratar Chanbasappa Deshmukh AND ANOTHER v. Malappa, [1964] 4 SCR 497 and Ammathayee Ammal AND ANOTHER v. Kumaresan AND Ors., [1967] 1 SCR 353, referred to. Anivillah Sundararamaya v. Cherla Seethamma AND Ors., (1911) 21 MLJ 695; Pugalila Vettorammal AND ANOTHER v. Vettor Goundan, (1912) MLJ 321; Devalaktuni Sithamahalakshmamma AND Ors. v. Pamulpati Kotayya AND Ors., AIR (1936) Madras 825; Karuppa Gounder AND Ors. v. Palaniammal AND Ors., (1963) 1 MLJ 86; The Commissioner of Gift Tax v. Tej Nath, (1972) PLR (74) 1 and Tara Sabuani v. Raghunath, AIR (1963) Orissa 59, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16757 of 1996.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7 CASE NO.: Appeal (civil) 16757 of 1996 PETITIONER: R. Kuppayee & Anr. RESPONDENT: Raja Gounder DATE OF JUDGMENT: 10/12/2003 BENCH: R.C. Lahoti & Ashok Bhan. JUDGMENT: J U D G M E N T BHAN, J. Aggrieved by the judgment and decree passed by the courts … Continue reading
West Bengal Premises Tenancy Act, 1956- PARTIAL EVICTION NOT APPLICABLE TO THIS CASE = ” Considering the evidence adduced by both parties and the principles of law discussed above, I find that the plaintiff is the owner of the suit premises, the compromise decree in T.S. No.55/86 is admissible in evidence, the present accommodation of the plaintiff is not suitable and the suit premises is required for the reasonable requirement of the plaintiff for own use and occupation and for augmentation of her income from the suit premises and there cannot be any partial eviction and as such all these issues be disposed of in favour of the plaintiff.”- “It is not expected that the plaintiff being divorcee will reside in the house of her brother and at mercy of her brother and brother’s wife. In order to reside peacefully one privy, one kitchen, one bath room and one dining space in other words complete flat is required for the purpose of the residence of the plaintiff, so in the circumstances I hold that the plaintiff has bonafide reasonable requirement of the suit premises for her own use and occupation.”- the provision contained in the West Bengal Premises Tenancy Act, 1956 mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire building should be directed to be vacated. However, while deciding the issue of reasonable personal requirement of the landlord, if the trial court or the appellate court also considers the extent of requirement and records a finding that the entire premises or part thereof satisfies the need of the landlord, then, in our considered opinion, there is sufficient compliance of the provision contained in the said Act. 20. Taking into consideration these facts and also having regard to the finding recorded both by the trial court and the appellate court after discussing the question of partial eviction, the substantial question of law framed by the High Court does not arise. Consequently, the impugned judgment passed by the High Court cannot be sustained in law. 21. For the reasons aforesaid, this appeal is allowed. The impugned judgment of the High court is set aside and the judgment and decree of the trial court is affirmed. However, there shall be no order as to costs. 22. The defendant-respondents are directed to vacate the suit premises within three months and hand over vacant possession of the same to the appellant. ‘
‘ REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4539 OF 2013 (Arising out of Special Leave Petition (Civil) No.30300 of 2011) ANAMIKA ROY Appellant(s) VERSUS JATINDRA CHOWRASIYA AND OTHERS Respondent(s) M.Y. EQBAL, J.: Leave granted. 2. Aggrieved by the judgment dated 10.2.2011 passed by learned Single Judge of the … Continue reading
Evidence Act, 1872: ss. 101 and 102-Burden of proof-Suit for declaring sale deed as void-Forgery and fabrication of document alleged-Held, with a view to prove forgery or fabrication in a document, possession of the same by defendant would not change legal position-Initial burden of proof would be on plaintiff-The fact that defendant was in a dominant position must be proved by plaintiff at the first instance. Evidence-Burden of proof and onus of proof-Distinction between-Explained. Words and Phrases: Expressions `burden of proof’ and `onus of proof’-Connotation of in the context of Evidence Act. Suit-Framing of issues-Practice and Procedure. Pursuant to an agreement of sale between respondent and appellant, a sale deed was executed on 26.3.1991. Later, the respondent filed a suit for declaration that the said sale deed was void as the same was forged and fabricated. The defendant-appellant denied the allegations. On pleadings of the parties the trial court framed the following issue: “Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?” On an application by the plaintiff, the trial court observed that onus to prove an issue was to be discharged in affirmative and it would always be difficult to prove the same in negative, and reframed the issue as under: “Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?” The revision application of the defendant was dismissed by the High Court observing that defendant was in a dominant position to prove the document affirmatively. Aggrieved, the defendant filed the present appeal. Citation: 2006 AIR 1971,2006(1 )Suppl.SCR659 ,2006(5 )SCC558 ,2006(5 )SCALE153 ,2006(11 )JT521- Allowing the appeal, the Court HELD: 1.1. In view of Section 101 of the Evidence Act, the initial burden of proof would be on the plaintiff. The trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. The fact that the defendant was in a dominant position must be proved by the plaintiff at the first instance. [662-h; 663-b-c; e] Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR (2003) SC 4351, distinguished. 1.2. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the Trial Judge to produce the same. [655-d-e] 2. It should be borne in mind that a distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the OTHERS The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitled him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [655-f-h; 666-a] R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr., JT (2004) 6 SC 442, relied on. 3. The order reframing the issue is set aside thus reviving the issue originally framed. [666-d] Suresh Kumari and A.P. Mohanty for the Appellant. Shalil Sagar, Pratap Venugopal and E. Venu Kumar for M/s. K.J. John & Co., for the Respondent.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5 CASE NO.: Appeal (civil) 2413 of 2006 PETITIONER: Anil Rishi RESPONDENT: Gurbaksh Singh DATE OF JUDGMENT: 02/05/2006 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 5963 of 2006] S.B. SINHA, … Continue reading
Order VI Rule 16 ,17CPC= whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable. 25. After giving our full consideration on the matter, we do not find any error in the impugned order passed by the High Court. Hence, these appeals have no merit and are accordingly dismissed. No order as to costs.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3914 OF 2013 [Arising out of SLP (C) No.12497 of 2008] S. Malla Reddy … Appellant(s) vs. M/s. Future Builders Co-operative Housing Society & Ors. … Respondent(s) WITH CIVIL APPEAL NO. 3916 OF 2013 [Arising out of SLP (C) … Continue reading
specific relief Act = It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts”, would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined.; In the facts and circumstances of the case, as the appellant has not yet acquired any title over the land, he has no right to receive compensation to the tune of Rs. 29,47,112/-. However, he withdrew the said amount by giving an undertaking to return the said amount to Res. No. 1 in case any such order was passed by the court in this regard. In view of the above, the appeals are allowed. The judgment and decree passed by the High Court is set aside, and the same passed by the trial court is restored. As a consequence, the appellant is entitled to get the sale deed executed and registered, with respect to all the suit land available now (minus the land acquired and the land purchased by the respondent no.6). 17. The appellant is directed to refund the amount of compensation received by him to Res. No. 1 within a period of three months, alongwith 9% interest from the date of receipt till the date of payment. Civil Appeal Nos. 2888 and 4459 of 2005 In view of the judgment and order in Civil Appeal Nos. 2885- 2887 of 2005, these appeals are dismissed.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 2885-2887 of 2005 S. Kesari Hanuman Goud … Appellant Versus Anjum Jehan & Ors. … Respondents With CIVIL APPEAL NOs. 2888 & 4459 of 2005 J U D G M E N T Dr.B.S.Chauhan, J. Civil Appeal Nos. 2885-2887 of 2005 … Continue reading
Benami Transaction (Prohibition) Act, 1988 = whether the facts disclosed would indicate that even after coming into force of the Act the defence under Secion 4 can be available. Admittedly, the transaction in question was registered on 24th August, 1970. The suit was filed on 5th of July 1984 which was long before coming into force of the Act. It is an admitted position that the written statement in the suit taking plea of benami was also filed by the appellant long before the Act had come into force. Therefore, it was not a case where Section 4(2) of the Act will have a limited operation in the pending suit after Section 4(2) of the Act had come into operation. It is true that the judgment of the trial court was delivered after the Act had come into force but that could not fetter the right of the appellant to take the plea of benami in his defence. Since the Act cannot have any retrospective operation in the facts and circumstances of the present case, as held by this Court in the aforesaid decision, we are therefore of the view that the appellant was entitled to raise the plea of benami in the written statement and to show and prove that he was the real owner of the suit property and that the respondent was only his benamidar. ;sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. = Section 3 deals with Prohibition of benami transaction. Sub-section (1) clearly prohibits that no person shall enter into benami transaction. However, sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. Section 3(2) makes it abundantly clear that if a property is purchased in the name of an unmarried daughter for her benefit, that would only be a presumption but the presumption can be rebutted by the person who is alleging to be the real owner of the property by production of evidences or other materials before the court. In this case, the trial court as well as the appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2) of the Act arose because of purchase of the suit property by the father ( in this case appellant ) in the name of his daughter ( in this case respondent ), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit. ;whether the concurrent findings of fact could be set aside by the High Court in the second appeal. = From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (See [2002(9) SCC 735, Gangajal Kunwar (Smt.) and Ors. Vs. Sarju Pandey (Dead) by LRs & Ors.] ). It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning.
CASE NO.: Appeal (civil) 2867 of 2000 PETITIONER: G.Mahalingappa RESPONDENT: G.M. Savitha DATE OF JUDGMENT: 09/08/2005 BENCH: D.M. DHARMADHIKARI & TARUN CHATTERJEE JUDGMENT: J U D G M E N T TARUN CHATTERJEE, J. This is an unfortunate litigation between a father and his married daughter on the right of ownership of a house measuring … Continue reading
Urban Land (Ceiling and Regulation) Act- whether the deemed vesting of surplus land under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 [for short ‘the Act’] would amount to taking de facto possession depriving the land holders of the benefit of the saving Clause under Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 [for short ‘the Repeal Act’]. = The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act. We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 3 of the Repeal Act. However, there will be no order as to costs.
Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 2326 OF 2013 [Arising out of SLP (Civil) NO.12960 OF 2008] State of U.P. .. Appellant Versus Hari Ram .. Respondent WITH CIVIL APPEAL NO. 2327 OF 2013 arising out of SLP(C)No.10625/2006 CIVIL APPEAL NO. 2328 OF 2013 arising out … Continue reading
Ex-cadre post – promotion etc., – Tribunal, therefore, refused the prayer of the respondent for permitting him to work in the Administrative Department as OSDcum-Deputy Director (Steel). – However, as regards the promotional prospect the Tribunal held as under :- “As regards his promotional prospects it is clear from the documents at Annexure 1 and 2 that the applicant was termed as a hold of ex-cadre post only after his actual appointment and no mention was made therein regarding his appointment against an ex-cadre post. We, therefore, suggest that the Directorate of Geology may consider the case of the applicant for career advancement vis-à- vis other comparable Class-I Engineers in service appointed in 1984 in the erstwhile Directorate of Mining an Geology (and later the Directorate of Geology) on the same footing as if he was appointed at par with other Engineers in 1984 and treating him as the junior most of that batch and consider him for promotion from the date his junior was so considered from time to time.”- we are of the view that the finding arrived at by the High Court that the post of Ore Engineer was for the first time treated as ex cadre post in the year 2005, is absolutely perverse and erroneous.- where the Members of the State Administrative Services made a claim that a number of ex-cadre or temporary posts which were temporary in nature and some of them 19Page 20 were created under the State Enactments which required their manning by IAS Officers. It was contended that on account of failure of the Central Government to timely review the cadre strength as statutorily required, the promotion of the promotees got inordinately delayed and they lost their seniority in the promoted cadre. The rule does not confer any right on the petitioners to seek a Mandamus for en cadring those ex-cadre/temporary posts. Any such Mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength which was held that asking the State or the Central Government for en cadrement of the ex cadre/temporary posts will amount to asking the Government to create more posts.- In the background of the law well settled by this Court, we are of the definite opinion that the direction issued by the Tribunal and the order of the High Court affirming the order of the Tribunal is wholly without jurisdiction. The impugned orders passed by the Tribunal as also by the High Court are, therefore, liable to be set aside. 26. For the aforesaid reasons, we allow this appeal and set aside the orders passed by the State Administrative Tribunal in O.A. No.97 of 2009 and the impugned order passed by the High Court.
Page 1 [ REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1967 OF 2013 (Arising out of Special Leave Petition (Civil) No. 20635 of 2011) State of Orissa & Ors. …Appellants Vs. Sri Jagabandhu Panda …Respondent WITH C.A.No.1968 OF 2013 arising out of SLP(Civil) No.8676/2013 J U D G M E … Continue reading
Section 498-A of the IPC could be made compoundable, – a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. – We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. – No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the 10Page 11 wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) xxx xxx xxx (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) xxx xxx xxx (viii) xxx xxx xxx (ix) xxx xxx xxx (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. 11Page 12 (xi) xxx xxx xxx (xii) xxx xxx xxx (xiii) xxx xxx xxx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. – directions, which the courts dealing with the matrimonial matters shall follow: (a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the 36Page 37 Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit. (b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to 37Page 38 grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case. (c) All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage. 37. The appeal is disposed of in the aforestated terms.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1794 OF 2013 (Arising out of Special Leave Petition (Civil) No. 4782 of 2007) K. SRINIVAS RAO … APPELLANT Versus D.A. DEEPA … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. This appeal, by special leave, has been … Continue reading
advocatemmmohan 