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Citation: LU
Updated Law Society
Law Updates Digest
2018
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1 2
CONTEXT
SUBJECT /ACT INDEX
Arbitration and Conciliation Act, 1996 -
S. 8 — termination of agreement by one
party on account of breach committed by the
other, position of arbitration clause … 32
S. 11(6) -- … 34
Code of Civil Procedure, 1908-
S. 97 — no bar to file an application for
amendment of decree … 25
S. 99 — No decree can be reversed or subs-
tantially varied … 66
S. 27 Read with O. 5 R. 1, 5 and 20(3) —
Service of summons … 21
Order 1 Rule 10. Order 22 Rule 4 and
Sections 151 & 153 — expired prior to filing
of suit … 25
O.9 R.13 … 21
O.6 R. 17 — Amendment of plaint after final
decree … 23
O. 6 R. 17 — property can be added in
the list after preliminary decree … 24
O. 7 R. 11 - What to consider … 59
O. 7 R. 11 – Whether the plaint as a whole
can be rejected … 59
FROM THE DESK OF THE CHIEF EDITOR
Again, I got the most privileged task as a member of the Editorial
Board of your beloved Law Journal. After the first publication,
during the entire month, we have enriched ourselves with the
valuable suggestions of the readers and all our Editors invested
tireless efforts to improve the journal in various aspects. We
are very respectful to the response we got in the first month
from the Readers so that we can retain the position we got in
your library.
To meet the demand of our valuable readers, we have published
Digest with Full Text Judgements in CD version also from this
month.
Besides the Paper Back and CD version of the Digest, we have
already very successfully launched a unique service which is
being availed by various legal professionals across the Country;
Judgement on Demand; In the daily life of a busy legal
professional, it is very tough and tiresome job for them to find
out the appropriate judgement from the huge library at the
eleventh hour. We took the job to search the required judgement
for them within shortest possible time. Anyone can reach our
Editorial Board with his specific requirement and we strive our
best to find out the best possible judgement from our available
database and we send the judgement through whatsapp so that
during Court hours also legal professional can get the Full Text
of the judgement without searching the library.
We hope we will not be deprived to get your continuous support
as before.
Dated: 30.04.2018
Order 13, Rule 3 and Order 7 Rule 11 —
Difference between Memorandum of family
settlement and Family Settlement … 50
Non mentioning of the correct provision … 25
Code of Criminal Procedure, 1973-
S. 125 (3) –- Limitation to file claim for due
maintenance … 53
S. 156 (3) — Further investigation … 17
S. 167 (2) – Grant of statutory bail … 46
173(8) — re-investigation after making charge
and discharge of co-accused … 17
173(8) — jurisdiction to ignore police reports … 18
S. 173 – direction for Further investigation
final report had been submitted, cognizance
had been taken, accused had appeared, and
trial is underway … 19
S. 256 – Whether dismissal of complaint
due to non-appearance of the complainant
amounts to acquittal … 45
S.438 —Nature of conditions which may be
imposed … 44
S. 439 — Application for Bail to Session Court
or High Court without filing before the Magistrate … 22
S. 439 — court should exercise discretion
in a judicious manner … 33
S. 439 — Accused surrendered before
the High Court – jurisdiction of Court … 41
S. 340 — prosecution u/s 340 instituted
without recording of finding … 26
S. 340 — necessary conditions for initiation
proceeding … 29
S. 154 — Guidelines for registering F.I.R. … 26
Ss. 228,397 and 482 — jurisdiction of the
High Court to consider a challenge of an
order of framing charge … 38
Constitution of India, 1950 –
Article 21, 215 … 37
Article 215 — Inherent Power of High Court to
stay a trial under the Prevention of Corruption Act … 40
Consumer Protection Act, 1986 –
Complaint by Consumer Association formed
by affected flat buyers … 57
Medical Negligence — Principles for deciding … 63
Criminal Trial
Role of Public Prosecutor … 20
Guidelines to conduct … 21
Imposition of jail sentence and fine both Mandatory … 44
Delhi Land Reforms Act, 1954 –
Use of agricultural land for other purposes … 65
3 4
East Kolkata Wetlands (Conservation And
Management) Act, 2006 –
Conversion from agricultural to non-
agricultural land … 40
Evidence Act, 1872
S. 33 — statements made by a witness in
an earlier judicial proceeding … 56
S.65B (4) — Electronic record – Requirement
of certificate … 53
S. 65B (2)— Electronic record —Specified
conditions … 53
S. 65B (4) – Electronic record — Conditions
to be fulfilled … 55
65B (4) – Electronic record – Certificate … 55
S. 65B (4), 62 – Electronic record - If an electronic
record as such is used as primary evidence … 55
S.65 B — not admissible unless accompanied
by a certificate … 57
S. 114 … 22
Whatsapp forward as evidence … 23
S.90, 110 — Presumption of title as a result
of Possession … revenue record is not a
document of title … 46
Fundamental Right – … 56
General Clauses Act, 1897 –
S. 27 … 22
Hindu Adoption and Maintenance Act, 1956 –
S. 9 — Giving in Adoption by biological
mother to her newly married husband … 32
Hindu Marriage Act, 1955-
S. 13 – wife’s right to residence at her husband’s
place during pendency of Divorce … 30
S. 13 – wife attempted to commit suicide
— ground for divorce … 58
S. 13 – Wife’s claim to get separated from her
in laws and to live separately with husband—
amounts to cruelty … 59
S. 13 – Validity of Divorce Decree passed by
Foreign Court … 61
S. 13B – Waiver of Statutory period … 62
S.13B - Whether, statutory period prescribed
is mandatory or directory … 62
S.13B – where marriage totally unworkable,
emotionally dead, beyond salvage and broken
down – no need to wait … 63
S. 13B - further development during pendency
of the transfer application — statutory period waived … 63
Hindu Succession Act, 1955-
Relinquishment of the rights of other heirs … 50
5 6
Indian Contract Act,1872 –
S. 23 and 24 — Doctrine of Severablity … 34
Indian Penal Code, 1860 –
S. 325 — Imposition of jail sentence and
fine both mandatory … 44
Indian Registration Act, 1908 –
Sec.17,49 — Family Settlement compulsorily
registrable … 50
Indian Stamp Act, 1899 -
Art. 45, Sec. 35 — stamped in proper manner … 50
Indian Succession Act, 1925 –
S. 281, 282 — testator not knowing English
— Execution doubted … 43
Loss of original Will … 43
Interpretation of Statue - … 44
Kerala Buildings(Lease and Rent Control)Act,1965
S. 11(4)(iii) and 11(4)(iv) — eviction granted
on one ground does not mean surviving have
become non-est … 46
Land Acquisition Act, 1894
S. 28-A — Determination of compensation
on the ground of delay … 45
Land Encroachment Act, 1905-
Revenue record is not a document of title … 47
Limitation Act, 1877 –
S.17, 21, 22 … 35
Art. 137 — Execution of preliminary decree
for partition … 66
Modification of Order –
No instruction of client – Complaint against Lawyer … 45
Motor Vehicles Act, 1988-
S. 2(30) — Definition of Owner … 31
Vehicle was driving in wrong side … 58
Negotiable Instruments Act, 1882 –
S. 138; service of notice on a specific date … 22
S.138 – Whether dismissal of complaint
due to non-appearance of the complainant
amounts to acquittal … 45
S.138 – Statutory notice send through Fax … 52
S. 138 — Security Cheque … 55
Passport Act, 1967 –
Whether father’s name is mandatory
in Passport … 56
Prevention of Corruption Act, 1988 –
S.19(3)(b) and (c) … 37
Stay of Proceedings … 37
Protection of Women from Domestic
Violence Act, 2005 –
7 8
Limitation in filing the complaint … 52
Whether maintainable where 498-A of the
Indian Penal Code is pending … 52
Service Matter –
Contract Employee – Whether can claim
for renewal of Contract … 45
Stay of proceedings - … 37
Transfer of Criminal Case - … 43
West Bengal Cooperative Societies Act, 1983 –
S. 79, 80 — Nomination of share in
Cooperative Society and disposal of share
of the deceased … 60
West Bengal Cooperative Societies Act, 2006 -
S. 102 -- Suit challenging wrongful
termination of the building contract -
Whether the plaint is liable to be rejected
as it is barred … 60
West Bengal Estate Acquisition Act, 1953
S. 5A — settlement records of right are not
the documents of title … 51
West Bengal Land Reforms Act, 1955 –
Recording of Barga … 41
S. 18 — Recording of Barga —
Standard of proof … 42
S. 18 — Refusal by landowner to
accept the share of produce … 42
S. 19A (2A) — Lodging of complaint for
grant receipt … 42
West Bengal Land Reforms and
Tenancy Tribunal Act, 1997 –
S. 5A — settlement records of right
are not the documents of title … 51
Wetlands (Conservation & Management)Rules, 2006 –
S. 2(c) … 40
Rule 4(vi) Wetland Construction prohibited … 40
Words and Phrases –
Investigation, Further Investigation
and De novo Investigation … 19
Writ Petition –
Minor rape victim prayed for termination
of pregnancy … 47
CITATION INDEX
“A” through her Father “F” vs State
of U.P. through Prin. Secy., Med & Health
Ser. & Ors; LU(Apr 35) 2018 ALL; … 47
Amarsang Nathaji As Himself And As
Karta And Manager Vs Hardik
Harshadbhai Patel And Others;
LU(April 13) 2018 SC; … 29
9 10
Amit Kumar and others vs Bhushan
Lal; LU(Apr 28) 2018 SC; … 44
Amrutbhai Shambhubhai Patel Vs
Sumanbhai Kantibhai Patel & Ors.;
LU(April 1) 2018 SC; … 17
Anjana Kishore vs Puneet Kishore;
LU (Apr 56) 2018 SC; … 63
Anvar P. V. (S) vs P. K. Basheer and
others; LU (Apr 42) 2018 SC; … 53
Asian Resurfacing of Road Agency
Pvt Ltd and Another vs Central Burueau;
LU(Apr 20) 2018 SC; … 36
Auto Cars vs Trimurti Cargo Movers Pvt Ltd
and Others; LU(April 4) 2018 SC; … 21
Geeta Kapoor and Another vs State of Haryana
and Another; LU(Apr 38) 2018 P & H; … 52
Harita Sunil Parab Vs State Of Nct Of Delhi
And Others; LU (Apr 25) 2018 SC; … 43
Harpal Singh vs Ashok Kumar and Another;
LU(Apr 58) 2018 SC; … 65
Indrani Wahi vs Registrar of Co-op. Societies
and Ors; LU (Apr 51) 2018 SC; … 60
Kusum Sharma and Others vs Batra Hospital
and Medical Research Centre and Others; LU
(Apr 57) 2018 SC; … 63
Karam Chand (Dead) by Lrs. and
Another vs State of Himachal Pradesh and
Another; LU(Apr 30) 2018 SC; … 45
Kunal Kumar Tiwari @ Kunal Kumar Vs State
Of Bihar And Another; LU (Apr 26) 2018 SC; … 44
K.L.N.V. Veeranjaneyulu Vs Union of India
& Ors.; LU (Apr 45) 2018 SC; … 56
Leela Rajagopal and others vs Kamala
Menon Cocharan and Others; LU (Apr 24)
2018 SC; … 43
Lt. Col. Prasad Shrikant Purohit vs State
of Mahasashtra; LU(Apr 18) 2018 SC; … 31
Manti Devi and Another vs Kishun Sah @
Kishun Deo Sao and Others; LU (Apr 60)
2018 SC; … 66
Mangla Ram vs The Oriental Insurance Co. Ltd.
and Others; LU (Apr 48) 2018 SC; … 57
Manish Goel vs Rohini Goel;
LU (Apr 54) 2018 SC; … 62
Mr. Gopal Chandra Ghosh vs Mr. Chandi
Charan De; LU(Apr 37) 2018 CAL; … 51
Mrs. Hema Khattar and Another vs
Shiv Khera; LU(April 17) 2018 SC; … 32
11 12
M/s Ajeet Seeds Ltd vs K. Gopala
Krishnaiah; LU (April 6) 2018 SC; … 22
M/s Amrapali Sapphire Developer Pvt Ltd vs
M/S. Amrapali Sapphire Flat Buyers Welfare
Association; LU (Apr 47) 2018 SC; … 57
M/s Sil Import USA vs M/s Exim Aides Silk
Exporters Bangalore; LU(Apr 39) 2018 SC; … 52
Naba Nagari Co-operative Housing Society
Limited & Anr.; LU (Apr 50) 2018 CAL; … 59
Narendra vs K. Meena; LU (Apr 49) 2018 SC; … 58
National Lawyers Campaign For Judical
Transparency And Reforms and others vs
Union of India and Others; LU(April 7) 2018 SC; … 23
Naveen Kumar vs Vijay Kumar and Others;
LU(April 15) 2018 SC; … 31
Nikhil Kumar vs Rupali Kumar; LU (Apr 53)
2018 SC; … 62
Pankajbhai Rameshbhai Zalavadia vs Jethabhai
Kalabhai Zalavadiya (deceased) Through
LRs & Ors; LU(April 10) 2018 SC; … 25
Peethani Suryanarayana & Anr. vs Repaka
Venkata Ramana Kishore & Ors;
LU(April 8) 2018 SC; … 23
Prem Sagar Manocha vs State (NCT of Delhi);
LU(April 11) 2018 SC; … 26
Rambeer Shokeen vs State of NCT of Delhi;
LU(Apr 31) 2018 SC; … 45
Sampelly Satyanarayana Rao vs Indian
Renewable Energy Development Agency Limited;
LU (Apr 43) 2018 SC … 55
S. Satnam Singh and others vs Surender Kaur
and Another; LU(April 9) 2018 SC; … 24
Shafhi Mohammad vs The State of Himachal
Pradesh; LU (Apr 41) 2018 SC; … 53
Shailender Kumar vs State of Bihar and Others;
LU(April 3) SC 2018; … 21
Shalu Nigam & Anr Vs The Regional Passport
Officer & Anr; LU (Apr 44) 2018 DEL; … 55
Shanta @ Ushadevi & Anr vs B. G. Shivananjappa;
LU (Apr 40) 2018 SC; … 53
Shweta Gupta vs Rahul Keshav Jadhao and
Another; LU(Apr 16) 2018 ALL; … 32
Shiv Kumar vs Hukam Chand and Another;
LU(April 2) 2018 SC; … 20
Sita Ram Bhama vs Ramvatar Bhama;
LU(Apr 36) 2018 SC; … 50
Smt Poonam vs Sumit Tanwar;
LU (Apr 55) 2018 SC; … 62
Sri Subhash Chandra Das Chowdhury
vs Smt. Sandhya Das Chowdhury;
LU(April 14) 2018 Cal; … 30
13 14
Sundeep Kumar Bafna vs State of
Maharashtra and Another; LU (April 5) 2018 SC; … 22
Shin Satellite Public Co Ltd vs M/s.
Jain Studios Limited; LU(Apr 19) 2018 SC; … 34
Shambhunath Nath Ghosh and others
vs The State of West Bengal and Others;
LU (Apr 23) 2018 SC; … 41
Sonu @ Amar vs State of Haryana;
LU(Apr 46) 2018 SC; … 56
Splendour Commercial Pvt. Ltd. &
Anr. vs Authority & Ors.; LU (Apr 21) 2018 Cal; … 40
Sundeep Kumar Bafna vs State Maharashtra
and Another; LU(Apr 22) 2018 SC; … 40
The State of A.P. & Ors vs M/s Star
Bone Mill & Fertiliser Co; LU(Apr 34) 2018 SC; … 46
The State of Uttar Pradesh vs Tribhuwan
and Ors; LU(Apr 27) 2018 SC; … 44
Venu vs Ponnusamy Reddiar (Dead) Thr.
Lrs & Anr; LU (Apr 59) 2018 SC; … 66
V. K. Bhat vs G. Ravi Kishore and Another;
LU(Apr 29) 2018 SC; … 45
Valiyavalappil Sarojakshan & ors.
Sumalsankar Gaikevada; LU(Apr 33) 2018 SC; … 46
Y. Narasimha Rao and Others vs Y. Venkata
Lakshmi and Another; LU (Apr 52) 2018 SC; … 61
Yogesh Mahajan vs Prof. R. C. Deka,
Director All India Institute of Medical Science;
LU(Apr 30) 2018 SC; … 45
Youth Bar Association of India vs Union
of India and others; LU(April 12) 2018 SC; … 26
15 16
LU(April 1) 2018 SC
Code of Criminal Procedure, 1973; S. 156 (3) — Further
investigation — Held: on receipt of the report, before taking
cognizance of the offence alleged, may direct further
investigation under sub-Section (3) of Section 156 Cr.P.C.
and require the police to make further report and that such
power can be exercised suo motu, contingent on its
satisfaction of the necessity thereof to espouse the cause of
justice. (Para 27)
Code of Criminal Procedure, 1973; S. 156(3) — Whether a
judicial Magistrate, after taking cognizance of an offence, on
the basis of a police report and after appearance of the
accused in pursuance of the process issued, can order of its
own, further investigation — Held: the Magistrate of his own,
cannot order further investigation after the accused had
entered appearance pursuant to a process issued to him
subsequent to the taking of the cognizance by him. (Para
31)
Code of Criminal Procedure, 1973; S. 173(8) — Whether,
after the charge-sheet had been filed by the investigating
agency under Section 173(2) Cr.P.C, and charge had been
framed against some of the accused persons on the basis
thereof, and other co-accused had been discharged, the
Magistrate could direct the investigating agency to conduct
a re-investigation or further investigation under sub-Section
(8) of Section 173 — Held: after taking cognizance of an offence
on the basis of a police report and after the appearance of
the accused, a Magistrate cannot of its own order further
investigation, though such an order could be passed on the
application of the investigating authority — the power of the
investigating officer to make a prayer for conducting further
investigation in terms of Section 173(8) of the Code was not
taken away only because a charge-sheet had been filed under
Section 173(2) and a further investigation was permissible
even if cognizance had been taken by the Magistrate — once
a charge-sheet was filed under Section 173(2) Cr.P.C and
either charges have been framed or the accused have been
discharged, the Magistrate may on the basis of a protest
petition, take cognizance of the offence complained of or on
the application made by the investigating authority, permit
further investigation under Section 173(8), but he cannot
suo motu direct a further investigation or order a re-
investigation into a case on account of the bar of Section
167(2) of the Code. (Para 32, 33)
Code of Criminal Procedure, 1973; S. 173(8) — Whether
in exercise of powers under Section 173 Cr.P.C, the Trial
Court has the jurisdiction to ignore any of the police reports,
where there was more than one, whether by the same or
different investigating agencies submitted in furtherance of
the orders of a Court — Held: the investigating agency was
thus competent to file a report supplementary to its primary
report and that the former was to be treated by the Court in
continuation of the latter. (Para 36)
Code of Criminal Procedure, 1973; S. 173 — Whether
Magistrate can direct further investigation either suo moto
17 18
or on the prayer of the informant after the final report had
been submitted, cognizance had been taken, accused had
appeared, and trial is underway — Held: that though the
investigating agency concerned has been invested with the
power to undertake further investigation desirably after
informing the Court thereof, before which it had submitted
its report and obtaining its approval, no such power is
available therefor to the learned Magistrate after cognizance
has been taken on the basis of the earlier report, process
has been issued and accused has entered appearance in
response thereto. At that stage, neither the learned Magistrate
suo motu nor on an application filed by the complainant/
informant direct further investigation. Such a course would
be open only on the request of the investigating agency and
that too, in circumstances warranting further investigation
on the detection of material evidence only to secure fair
investigation and trial, the life purpose of the adjudication in
hand — Though the Magistrate has the power to direct
investigation under Section 156(3) at the pre-cognizance stage
even after a charge-sheet or a closure report is submitted,
once cognizance is taken and the accused person appears
pursuant thereto, he would be bereft of any competence to
direct further investigation either suo motu or acting on the
request or prayer of the complainant/informant.
Words and Phrases — Investigation, Further Investigation
and De novo Investigation — Held: Whereas initial
investigation was alluded to be one conducted in furtherance
of registration of an FIR leading to a final report under Section
173(2) of the Code, further investigation was a phenomenon
where the investigating officer would obtain further oral or
documentary evidence after the final report had already been
submitted, so much so that the report on the basis of the
subsequent disclosures/discoveries by way of such evidence
would be in consolidation and in continuation of the previous
investigation and the report yielded thereby. “Fresh
investigation” “reinvestigation” “de novo investigation”,
however is an exercise, which it was held, could neither be
undertaken by the investigating agency suo motu nor could
be ordered by the Magistrate and that it was essentially within
the domain of the higher judiciary to direct the same and
that too under limited compelling circumstances warranting
such probe to ensure a just and fair investigation and trial.
(Para 39) LU(April 1) 2018 SC
LU(April 2) 2018 SC
Criminal Trial — Role of Public Prosecutor — Whether
Public Prosecutor can be allowed to sit back, handing over
conduct of prosecution to counsel engaged by complainant
— Held: It is not merely an overall supervision which the
Public Prosecutor is expected to perform in such cases when
a privately engaged counsel is permitted to act on his behalf
— It is the duty of a Public Prosecutor to conduct the case
for the Crown fairly. His object should be, not to obtain an
unrighteous conviction, but, as representing the Crown, to
see that justice is vindicated: and, in exercising his discretion
as to the witnesses whom he should or should not call, he
should bear that in mind — a Public Prosecutor should not
refuse to call or put into the witness-box for cross-
19 20
examination a truthful witness returned in the calendar as a
witness for the Crown, merely because the evidence of such
witness might in some respects be favorable to the defence
— If the role of the Public Prosecutor is allowed to shrink to
a mere supervisory role the trial would become a combat
between the private party and the accused which would
render the legislative mandate a dead letter. LU(April 2) 2018
SC
LU(April 3) 2018 SC
Criminal Trial — Guidelines to conduct — Murder trial —
in a murder trial it is sordid and repulsive matter that without
informing the police station officer-in-charge, the matters are
proceeded by the Court and by the APP and tried to be
disposed of as if the prosecution has not led any evidence —
It was the duty of the Sessions Judge to issue summons to
the investigating officer if he failed to remain present at the
time of trial of the case — It is his duty to keep the witnesses
present — If there is failure on part of any witness to remain
present, it is the duty of the Court to take appropriate action
including issuance of bailable/non-bailable warrants as the
case may be — It should be well understood that prosecution
cannot be frustrated by such methods and victims of the
crime cannot be left in lurch. LU(April 3) 2018 SC
LU (April 4) 2018 SC
Code of Civil Procedure, 1908; O. 9 R. 13 — Code of
Civil Procedure, 1908; S. 27 Read with O. 5 R. 1, 5 and
20(3) — Whether service of summons without mentioning
specific day, date, year and time can be held as ‘summons
duly served — the legislature while prescribing the format
of summons in the Code has provided one column where the
Court is required to mention a specific “day, date, year and
time” for the defendant’s appearance in the Court to enable
him to answer the suit filed against him/her —This is also
the requirement prescribed under Section 27 of the Code as
is clear from the words occurring therein “and may be served
in the manner prescribed on such day” — mentioning of the
specific “day, date, year and time” in the summons is a
statutory requirement prescribed in law (Code) and, therefore,
it cannot be said to be an empty formality — Direction to
appear within 15 days’ time without mentioning a specific
day, date, year and time is not in conformity with the
requirements of Section 27 read with Appendix B. LU (April
4) 2018 SC
LU (April 5) 2018 SC
Code of Criminal Procedure, 1973; S. 439 — Application
for Bail to Session Court or High Court without filing
application before the Magistrate — If maintainable — Held:
that there are no restrictions on the High Court or Sessions
Court to entertain an application for bail, provided, accused
is in custody LU (April 5) 2018 SC
LU (April 6) 2018 SC
General Clauses Act, 1897; S. 27 — Evidence Act, 1872;
S. 114 —Negotiable Instruments Act, 1882; S. 138 —
Whether it is necessary to state that the notice issued under
21 22
Section 138 of the NI Act by the complainant was served
upon the respondent-accused on any specific date — Held:
since the NI Act does not require that notice should only be
given by ‘post’ in a case where the sender has despatched
the notice by post with correct address written on it, Section
27 of the GC Act could be profitably imported and in such a
situation service of notice is deemed to have been effected on
the sender unless he proves that it was really not served and
that he was not responsible for such non-service — Section
114 of the Evidence Act enables the Court to presume that
in the common course of natural events, the communication
would have been delivered at the address of the addressee.
LU (April 6) 2018 SC
LU(April 7) 2018 SC
Evidence Act, 1872; — Whether Whatsapp forward can be
treated as document as per Evidence Act — Held: Annexure
- A does not even qualify as a document in terms of the
Evidence Act, 1872, in as much as, neither the original nor
the copy of the original has been produced. It is an admitted
position that the petitioners have not seen original and have
had no occasion to even compare Annexure - A with the
original. LU(April 7) 2018 SC
LU(April 8) 2018 SC
Code of Civil Procedure, 1908; O. 6 R. 17 — Amendment of
plaint after a final decree is passed in a suit for partition
— application for amendment of a mistake, said to be a
clerical one, in the decree, seeking deletion of the Town Survey
No. 462 and substituting the same by the Town Survey No.
463 — The village became a part of the municipality, by reason
whereof a new Town Survey was assigned to the suit land
being Town Survey No. 463 — In the plaint and consequently
in the preliminary decree as also in the final decree, Town
Survey No. 462 was mistakenly mentioned, which was
evidently a typographical mistake — The facts are not
disputed. The identity of the suit land has not been changed
— It is not a case where, as submitted by Mr. Mahabir Singh,
one land is being substituted by another — The fact that the
town survey No. 463 is a joint family property is not in dispute
— As indicated hereinbefore, it is the same plot which was
the subject matter of sale — Order of the High Court
confirming the order of the Civil Court allowing the
amendment is confirmed. LU(April 8) 2018 SC
LU(April 9) 2018 SC
Code of Civil Procedure, 1908; O. 6 R. 17 — Whether a
property can be added in the list of properties after a
preliminary decree is passed in a partition suit is the
question involved herein — Held: In certain situations, for
the purpose of complete adjudication of the disputes between
the parties an appellate Court may also take into
consideration subsequent events after passing of the
preliminary decree — The Trial Court felt that it had
committed a mistake. In such a situation, the court, in our
opinion, committed no infirmity in directing rectification of
its mistake.
23 24
Code of Civil Procedure, 1908; S. 97 — Section 97 of the
Code of Civil Procedure provides for an appeal against
preliminary decree but the said provision, in our opinion,
would not be a bar to file an application for amendment of a
decree. LU(April 9) 2018 SC
LU (April 10) 2018 SC
Limitation Act, 1877, section 17, 21, 22 — Civil Procedure
Code; Order 1 Rule 10. Order 22 Rule 4 and Sections 151
& 153* — Whether the legal representatives of deceased can
be impleaded under Order 1 Rule 10 of the Code where such
defendant expired prior to the filing of the suit particularly
when the application filed by the plaintiff to bring the legal
representatives of the deceased on record under Order 22
Rule 4 of the Code was dismissed earlier as not maintainable
— Held: merely because the earlier application filed by the
appellant under Order 22 Rule 4 of the Code was dismissed
on 09.09.2009 as not maintainable, it will not prohibit the
plaintiff from filing another application, which is maintainable
in law (Para 8)— No adjudication of the application to bring
legal representatives on record on merits by virtue of the
order dated 09.09.2009 — The order passed by the trial Court
on the application filed under Order 22 Rule 4 of the Code,
dated 09.09.2009, will not act as res-judicata — Appeal
allowed— Trial Court is directed to implead the legal
representatives of deceased.
Civil Procedure Code; Order 1 Rule 10, Order 22 Rule 4 and
Sections 151 &153 — Merely because of the non mentioning
of the correct provision as Order 1 Rule 10 of the Code at
the initial stage by the advocate for the plaintiff, the parties
should not be made to suffer— Courts are meant to do justice
and not to decide the applications based on technicalities
(Para14) LU (April 10) 2018 SC
LU(April 11) 2018 SC
Code of Criminal Procedure, 1973; S. 340 — Whether
prosecution under section 340 of Cr.P.C is to be instituted
by court without recording finding — Held: It is not
mandatory that the court should record a finding — What is
now required is only recording the finding of the preliminary
inquiry which is meant only to form an opinion of the court,
and that too, opinion on an offence ‘which appears to have
been committed’, as to whether the same should be duly
inquired into. LU(April 11) 2018 SC
LU (April 12) 2018 SC
Code of Criminal Procedure, 1973; S. 154 — Guidelines
to be followed by the police while registering F.I.R. —(a)
An accused is entitled to get a copy of the First Information
Report at under Section 207 of the Cr.P.C.
(b) An accused who has reasons to suspect that he has been
roped in a criminal case and his name may be finding place
in a First Information Report can submit an application
through his representative/agent/parokar for grant of a
certified copy before the concerned police officer or to the
Superintendent of Police on payment of such fee which is
payable for obtaining such a copy from the Court. On such
25 26
application being made, the copy shall be supplied within
twenty-four hours.
(c) Once the First Information Report is forwarded by the
police station to the concerned Magistrate or any Special
Judge, on an application being filed for certified copy on behalf
of the accused, the same shall be given by the Court
concerned within two working days. The aforesaid direction
has nothing to do with the statutory mandate inhered under
Section 207 of the Cr.P.C.
(d) The copies of the FIRs, unless the offence is sensitive in
nature, like sexual offences, offences pertaining to insurgency,
terrorism and of that category, offences under POCSO Act
and such other offences, should be uploaded on the police
website, and if there is no such website, on the official website
of the State Government, within twenty-four hours of the
registration of the First Information Report so that the accused
or any person connected with the same can download the
FIR and file appropriate application before the Court as per
law for redressal of his grievances. It may be clarified here
that in case there is connectivity problems due to geographical
location or there is some other unavoidable difficulty, the
time can be extended up to forty-eight hours. The said 48
hours can be extended maximum up to 72 hours and it is
only relatable to connectivity problems due to geographical
location.
(e) The decision not to upload the copy of the FIR on the
website shall not be taken by an officer below the rank of
Deputy Superintendent of Police or any person holding
equivalent post. In case, the States where District Magistrate
has a role, he may also assume the said authority. A decision
taken by the concerned police officer or the District Magistrate
shall be duly communicated to the concerned jurisdictional
Magistrate.
(f) The word ‘sensitive’ apart from the other aspects which
may be thought of being sensitive by the competent authority
as stated hereinbefore would also include concept of privacy
regard being had to the nature of the FIR. The examples
given with regard to the sensitive cases are absolutely
illustrative and are not exhaustive.
(g) If an FIR is not uploaded, needless to say, it shall not
enure per se a ground to obtain the benefit under Section
438 of the Cr.P.C.
(h) In case a copy of the FIR is not provided on the ground of
sensitive nature of the case, a person grieved by the said
action, after disclosing his identity, can submit a
representation to the Superintendent of Police or any person
holding the equivalent post in the State. The Superintendent
of Police shall constitute a committee of three officers which
shall deal with the said grievance. As far as the Metropolitan
cities are concerned, where Commissioner is there, if a
representation is submitted to the Commissioner of Police
who shall constitute a committee of three officers. The
committee so constituted shall deal with the grievance within
three days from the date of receipt of the representation and
communicate it to the grieved person.
27 28
(i) The competent authority referred to hereinabove shall
constitute the committee, as directed herein-above, within
eight weeks from today.
(j) In cases wherein decisions have been taken not to give
copies of the FIR regard being had to the sensitive nature of
the case, it will be open to the accused/his authorized
representative/parokar to file an application for grant of
certified copy before the Court to which the FIR has been
sent and the same shall be provided in quite promptitude by
the concerned Court not beyond three days of the submission
of the application.
(k) The directions for uploading of FIR in the website of all
the States shall be given effect from 15th November, 2016.
LU (April 12) 2018 SC
LU(April 13) 2018 SC
Code of Criminal Procedure, 1973; S. 340 — What are
necessary conditions for initiation of proceeding under
section 340 Cr.P.C. — Held: The mere fact that a person
has made a contradictory statement in a judicial proceeding
is not by itself always sufficient to justify a prosecution under
Sections 199 and 200 of the Indian Penal Code (45 of 1860)
(hereinafter referred to as “the IPC”); but it must be shown
that the defendant has intentionally given a false statement
at any stage of the judicial proceedings or fabricated false
evidence for the purpose of using the same at any stage of
the judicial proceedings. Even after the above position has
emerged also, still the court has to form an opinion that it is
expedient in the interests of justice to initiate an inquiry into
the offences of false evidence and offences against public
justice and more specifically referred in Section 340(1) of the
CrPC, having regard to the overall factual matrix as well as
the probable consequences of such a 6 Page 7 prosecution.
LU(April 13) 2018 SC
LU (April 14) 2018 Cal
Hindu Marriage Act, 1955; S. 13 — Whether during
pendency of Divorce Suit the wife has right to reside at
her husband’s residence — Wife has been residing at a rental
accommodation — She is employed — Held: once a
matrimonial suit has been filed, the wife has no right to have
a force entry in the house of her husband against his will if
she is provided with maintenance by the husband —
Allegation that the wife tried to enter the house of the husband
forcibly with the help of the local people — Held: The sole
object of the respondent was to frustrate the suit by
contending that she had been staying in the same room as
husband and wife and she has actually taken such plea in
this proceeding — We, however, do not believe such assertion
of the wife after taking into consideration the fact that the
she has initiated proceedings under Section 498A of the
Indian Penal Code during the pendency of the suit and all
the members of the family were arrested — No reasonable
person will believe the statement of the wife that the husband
is staying with her notwithstanding the pendency of the
criminal case where charge has been framed and he is an
29 30
accused person along with other members of the family. LU
(April 14) 2018 Cal
LU(April 15) 2018 SC
Motor Vehicles Act, 1988; Section 2(30) — Definition of
Owner — Due to road traffic accident at about 7:30 pm on
27 May 2009 one died and one injured — Two claim petitions
were filed before the Motor Accident Claims Tribunal of which
one was by injured and another was by the parents of
deceased — vehicle involved in the accident was registered
in the name of First respondent, although he taken plea that
he had sold the vehicle to the Second respondent prior to the
accident — Second respondent also taken plea that he has
sold the vehicle to the third respondent prior to the accident
— Third respondent in turn claimed to have sold the vehicle
to the petitioner — petitioner claimed that he had sold the
vehicle to Meer Singh — Tribunal granted compensation and
held that the First respondent jointly and severally liable
together with the driver of the vehicle when vehicle was
uninsured as the registration certificate of the offending
vehicle continued to be in the name of the First respondent
(Para 2) — appeal before the High Court of Punjab and
Haryana was allowed on the ground that there was no
justification for the Tribunal to pass an award against the
registered owner when there was evidence that he had
transferred the vehicle and the last admitted owner was the
appellant herein — In the view of the High Court, the Tribunal
ought to have passed an award only against the appellant as
the owner — Held : appeal allowed and direct that the liability
to compensate the claimants in terms of the judgment of the
Tribunal will stand fastened upon the First respondent as
he is still registered owner — judgment of the High Court is
set aside (Para 14) LU(April 15) 2018 SC
LU(Apr 16) 2018 ALL
Hindu Adoption and Maintenance Act, 1956; S. 9 — Giving
in Adoption by biological mother to her newly married
husband after divorce from the biological father of the child
without consent of the biological father — Whether possible
— Right of giving son or daughter in adoption is impermissible
to be exercised by either of them without consent of the other,
unless one of them has renounced the world or has ceased
to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind — However the Court
noticed that the biological father took no responsibility of
the child — Held: in view of complete detachment of the
biological father from the child who did not perform any of
the fatherly duties, the mother cannot be restrained from
lawfully including the child in her new family — Wife will be
permitted to give Master Lakshya in adoption to
respondent no.1 for which purpose giving and taking
ceremony in adoption shall be performed and a deed of
adoption shall also be executed and registered in terms
of section 16 of the Act, 1956. LU(Apr 16) 2018 ALL
LU(April 17) 2018 SC
Arbitration And Conciliation Act, 1996; S. 8 — Whether
termination of agreement by one party on account of
31 32
breach committed by the other can make the arbitration
clause inoperative — Held: where an agreement is
terminated by one party on account of the breach committed
by the other, particularly, in a case where the clause is framed
in wide and general terms, merely because agreement has
come to an end by its termination by mutual consent, the
arbitration clause does not get perished nor is rendered
inoperative.
Arbitration And Conciliation Act, 1996; S. 8 — Whether
termination of agreement by one party on account of
breach committed by the other can make the arbitration
clause inoperative — Held: the prerequisites for an
application under Section 8 are fulfilled, viz., there is an
arbitration agreement; the party to the agreement brings an
action in the court against the other party; the subject matter
of the action is the same as the subject-matter of the
arbitration agreement; and the other party moves the court
for referring the parties to arbitration before it submits his
first statement on the substance of the dispute — the civil
court had no jurisdiction to entertain a suit after an
application under Section 8 of the Act is made for arbitration.
LU(April 17) 2018 SC
LU (Apr 18) 2018 SC
Code of Criminal Procedure, 1973; S. 439 — Grant of Bail
— The court granting bail should exercise its discretion in a
judicious manner and not as a matter of course — Though
at the stage of granting bail a detailed examination of evidence
and elaborate documentation of the merit of the case need
not be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having
committed a serious offence — Any order devoid of such
reasons would suffer from non-application of mind — It is
also necessary for the court granting bail to consider, among
other circumstances, the following factors also before granting
bail; they are: (a) The nature of accusation and the severity
of punishment in case of conviction and the nature of
supporting evidence. (b) Reasonable apprehension of
tampering with the witness or apprehension of threat to the
complainant. (c) Prima facie satisfaction of the court in
support of the charge. LU (Apr 18) 2018 SC
LU(Apr 19) 2018 SC
Arbitration and Conciliation Act, 1996; S. 11(6) — Indian
Contract Act,1872; S. 23 and 24 —— Doctrine of
Severablity — Petitioner Company registered under the laws
of Thailand, having its principal office in Thailand, carries
on the satellite business and provides broadcasting and
internet services to various Companies/ firms in the world
including respondent Company having its registered office
at New Delhi —— agreement was entered into between them
for availing satellite and Broadcasting services against
payment of fees and in the agreement there was an arbitration
clause for settling of disputes — as a result of a dispute letter/
notice to the respondent demanding for arbitration issued
and it was informed that the petitioner appointed its arbitrator
and request was made to appoint the arbitrator on the part
33 34
of the respondent — respondent’s advocate contending that
the arbitration clause was not legal — subsequently, in reply-
affidavit, respondent urging that the Arbitration Agreement
was not legal and valid as contained a condition that the
arbitrator’s determination would be treated as final and
binding and the parties had waived all rights of appeal or
objection — it is also submitted that the disputes were to be
resolved by arbitration under the rules of United Nations
Commission on International Trade Law (UNCITRAL) —
question for consideration is whether the arbitration
agreement is legal, valid and enforceable — Held: it is
wellsettled that if the contract is in several parts, some of
which are legal and enforceable and some are unenforceable,
lawful parts can be enforced provided they are severable —
partial invalidity in contract will not ipso facto make the whole
contract void or unenforceable —Wherever a contract contains
legal as well as illegal parts and objectionable parts can be
severed, effect has been given to legal and valid parts striking
out the offending parts — Court further held that the sub-
clause making the award ‘final and conclusive was clearly
separable from the main clause which made reference to an
arbitrator imperative —The existence of the sub-clause or
the fact that the sub-clause appears to be void does not in
any way affect the right of the parties to have recourse to
arbitration and does not make a reference to an arbitrator
any the less an alternative remedy — In the present case,
clause 23 has one objectionable part which is clearly
severable from other three legal parts and as it is independent
of the dispute being referred to and resolved by an arbitrator
and therefore, the agreement is legal, lawful and the offending
part as to the finality and restraint in approaching a Court of
law can be separated and severed by using a blue pencil — It
is the duty of the court to severe and separate trivial or
technical part by retaining the main or substantial part and
by giving effect to the latter if it is legal, lawful and otherwise
enforceable — Court must consider the question whether
the parties could have agreed on the valid terms of the
agreement had they known that the other terms were invalid
or unlawful — If the answer affirmative, the doctrine of
severability would apply and the valid terms of the agreement
could be enforced, ignoring invalid terms — clause 20
(Severability) expressly states that if any provision of the
agreement is held invalid, illegal or unenforceable, it would
not prejudice the remainder — Reference of a dispute to an
arbitrator, by no means can be declared illegal or unlawful
— therefore, no objection can be raised by the respondent
against the agreement — as the agreement provides ’Delhi’
as the venue and since that part of the agreement is
enforceable, the prayer of the respondent to shift the same
to Singapore cannot be granted — since there is failure on
the part of the respondent in making an appointment of an
arbitrator in accordance with the agreement, even after receipt
of notice, the prayer cannot be granted at this stage —
arbitration petition allowed and Hon’ble Mr. Justice M.L.
Pendse (Retired) is accordingly appointed as Sole Arbitrator
LU(Apr 19) 2018 SC
LU(Apr 20) 2018 SC
Stay of proceedings — Wherever stay is granted, a speaking
order must be passed showing that the case was of
35 36
exceptional nature and delay on account of stay will not
prejudice the interest of speedy trial in a corruption case -
Once stay is granted, proceedings should not be adjourned
and concluded within two-three months.
Stay of proceedings — All pending cases where stay against
proceedings of a civil or criminal trial is operating, the same
will come to an end on expiry of six months from today unless
in an exceptional case by a speaking order such stay is
extended - In future, the stay will end on expiry of six months
from the date of such order of stay unless similar extension
is granted by a speaking order - Speaking order must show
that continuing the stay was more important than having
the trial finalized - Trial Court where order of stay of civil or
criminal proceedings is produced, may fix a date not beyond
six months of the order of stay so that on expiry of period of
stay, proceedings can commence unless order of extension
of stay is produced.
Constitution of India, 1950; Art 21, 215 — Criminal
Procedure Code, 1973; Ss. 228,397 and 482 — Prevention
of Corruption Act, 1988; Ss.19(3)(b) and (c) - Order Framing
of Charge challenged - There is no bar to jurisdiction of the
High Court to consider a challenge against an order of framing
charge in exceptional situation - Exercise of such jurisdiction
has to be limited to rarest of rare cases - Decision of such a
petition should not be delayed - Normally time should not
exceed two-three months - If stay is granted, it should not
normally be unconditional or of indefinite duration -
Appropriate conditions may be imposed on the party in whose
favour stay is granted - Where the matter remains pending
for longer period, the order of stay will stand vacated on expiry
of six months, unless extension is granted by a speaking
order showing extraordinary situation.
Criminal Procedure Code, 1973; Ss 228,397 and 482 —
Prevention of Corruption Act, 1988; Sections 19(3)(b) and
(c) — Framing of Charge - Stay of Proceedings - Order framing
charge may not be held to be purely a interlocutory order
and can in a given situation be interfered with under Section
397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution
- But the power of the High Court to interfere with an order
framing charge and to grant stay is to be exercised only in an
exceptional situation - Madhu Limaye case still hold the field
— Order framing charge is not purely an interlocutory order
nor a final order — Jurisdiction of the High Court is not
barred - Jurisdiction is to be exercised consistent with the
legislative policy to ensure expeditious disposal of a trial
without the same being in any manner hampered - Thus
considered, the challenge to an order of charge should be
entertained in a rarest of rare case only to correct a patent
error of jurisdiction and not to re-appreciate the matter -
Even where such challenge is entertained and stay is granted,
the matter must be decided on day-to-day basis so that stay
does not operate for an unduly long period - Though no
mandatory time limit may be fixed, the decision may not
exceed two-three months normally — If it remains pending
longer, duration of stay should not exceed six months, unless
extension is granted by a specific speaking order, as already
37 38
indicated - Mandate of speedy justice applies to the PC Act
cases as well as other cases where at trial stage proceedings
are stayed by the higher court i.e. the High Court or a court
below the High Court, as the case may be — In all pending
matters before the High Courts or other courts relating to PC
Act or all other civil or criminal cases, where stay of
proceedings in a pending trial is operating, stay will
automatically lapse after six months from today unless
extended by a speaking order on above parameters - Same
course may also be adopted by civil and criminal appellate/
revisional courts under the jurisdiction of the High Courts
— The trial courts may, on expiry of above period, resume
the proceedings without waiting for any other intimation
unless express order extending stay is produced.
Prevention of Corruption Act, 1988 Ss. 19(3)(b) and (c) —
Stay of Proceedings - Interdict against stay of proceedings
under this Act on the ground of any error, omission or
irregularity in the sanction granted by the authority is lifted
if the Court is satisfied that the error, omission or irregularity
has resulted in a failure of justice — No Court shall stay
proceedings under PC Act on “any other ground” - Held that
these are grounds referable to the proceedings under PC Act
and there is no warrant to add words not found in sub-section
(c), namely, that these grounds should be relatable to sanction
only.
Constitution of India, 1950 Article 215 — Prevention of
Corruption Act, 1988 Ss. 19(3)(b) and (c) — Inherent Power
of a High Court to stay a trial under the PC Act is
Constitutional and not Statutory Law — High Courts are
established by the Constitution - Inherent power of a Court
set up by the Constitution is a power that inheres in such
Court because it is a superior court of record, and not because
it is conferred by the Code of Criminal Procedure — Section
19(3)(c) cannot be read as a ban on the maintainability of a
petition before the High Court under Section 482, the non-
obstante clause in Section 19(3) applying only to the Code of
Criminal Procedure. LU(Apr 20) 2018 SC
LU (Apr 21) 2018 Cal
East Kolkata Wetlands (Conservation And Management)
Act, 2006; — Application for conversion of land at Mouza
Jagadipota for construction of school building — East Kolkata
Wetlands is also included within the list of Wetlands in India
identified as Ramsar site under Ramsar Convention on
wetlands — The land of the petitioners are described as
urban/rural settlement area in the Table No.9 under Schedule
1, framed as per Section 2(c) of the Wetlands (Conservation
& Management) Rules, 2006 — Held: Since construction of
a permanent nature within the wetlands area is prohibited
under Rule 4(vi) of the said Rules, the petitioners’ prayer for
allowing its land to be converted from agriculture to non-
agriculture land, in my view, cannot be allowed either by the
Wetlands Authority or by the Land Reforms Department of
the State of West Bengal. LU (Apr 21) 2018 Cal
LU(Apr 22) 2018 SC
Code of Criminal Procedure, 1973; S. 439 — Accused
surrendered before the High Court — Declined with the
39 40
observations that it is the Magistrate whose jurisdiction has
necessarily to be invoked and not of the High Court or even
the Sessions Judge — Held: learned Single Judge erred in
law in holding that he was devoid of jurisdiction so far as the
application presented to him by the Appellant before us was
concerned. Conceptually, he could have declined to accept
the prayer to surrender to the Courts’ custody, although, we
are presently not aware of any reason for this option to be
exercised. Once the prayer for surrender is accepted, the
Appellant before us would come into the custody of the Court
within the contemplation of Section 439 CrPC. The Sessions
Court as well as the High Court, both of which exercised
concurrent powers under Section 439, would then have to
venture to the merits of the matter so as to decide whether
the applicant/ Appellant had shown sufficient reason or
grounds for being enlarged on bail. LU(Apr 22) 2018 SC
LU(Apr 23) 2018 Cal
West Bengal Land Reforms Act, 1955 — Recording of
Barga — Held that in order to establish bargadar in the land
of another person, the Bargadar must prove the following:
1. that he himself is cultivating land from his own sources;
2. that he shares crops with the land owner, in the proportion
provided in the Act and such factum of sharing of crops must
be established by documentary evidence, namely receipt;
3. that in case of refusal to accept the share crops by the
land owner, he must deposit the same to the credit of the
land owner with the concerned Block Land and Land Reforms
Officer and obtain a receipt;
4. that in case of refusal to grant receipt against tendering of
share crops, the bargadar has to lodge a complaint before
the Magistrate under Section 19A (2A) of the West Bengal
Land Reforms Act.
West Bengal Land Reforms Act, 1955. S. 19A (2A) —
Lodging of complaint — Held: therein that lodging of such
complaint, prima facie establishes the fact of refusal to grant
receipt as Section 19A (2A) of the West Bengal land Reforms
Act provides that refusal to grant receipt is a punishable
offence and the same is cognizable also. Therefore, the
importance of issuance of receipt is well understood.
West Bengal Land Reforms Act, 1955; S. 18 — Recording
of Barga — Standard of proof — Held: though laws of evidence
is not strictly applied in such proceeding but the basic facts
regarding cultivation of the petitioners’ land by the respondent
No.7 and sharing of produce between them in the same
proportion as mentioned in the said Act are required to be
proved by substantive evidence.
West Bengal Land Reforms Act, 1955; S. 18 — Refusal by
landowner to accept the share of produce — Duty cast upon
claimed Barga — He should intimate the B.L. & L.R.O. and
must deposit the share of crop with the Revenue Officer
against receipt — Issuance of notice to the Land owners
regarding deposit of such share of crops — Intimation given
to the Pradhan about the refusal to accept the share of the
produce by the petitioner, cannot be regarded as due
41 42
compliance of the provision contained in Section 18 of the
West Bengal Land Reforms Act, 1955. LU(Apr 23) 2018 Cal
LU(Apr 24) 2018 SC
Indian Succession Act, 1925; Ss. 281, 282 — Whether
execution of will in English can be doubted on ground that
testator was not knowing English language — Held: The lack
of knowledge of English even if can be attributed to the
testator would not fundamentally alter the 14 Page 15
situation inasmuch as before registration of the Will the
contents thereof can be understood to have been explained
to the testator or ascertained from her by the Sub Registrar,
who had deposed that such a practice is normally adhered
to.
Indian Succession Act, 1925; — Loss of original Will —
Held: The stand of the plaintiff that the original Will was lost
while in the custody of her mother and her knowledge of
such loss on the day of her mother’s death cannot be
disbelieved merely because no report in this regard was lodged
before the police. LU(Apr 24) 2018 SC
LU (Apr 25) 2018 SC
Transfer of Criminal Case — The convenience of the parties
does not mean the convenience of the petitioner alone who
approaches the court on misconceived notions of
apprehension — Convenience for the purposes of transfer
means the convenience of the prosecution, other accused,
the witnesses and the larger interest of the society. LU (Apr
25) 2018 SC
LU (Apr 26) 2018 SC
Interpretation of Statue — In interpreting a provision of an
underlying the Act (whether that purpose or object is expressly
stated in the Act or not) should be preferred to an
interpretation that would not promote the object.
Code of Criminal Procedure, 1973; S. 438 — Nature of
conditions which may be imposed under Section 438 Cr.
P. C. — onerous anticipatory bail conditions are alien and
cannot be sustained in the eyes of law. The conditions
imposed appear to have no nexus with the good
administration of justice or advancing the trial process, rather
it is an over-zealous exercise in utter disregard to the very
purpose of the criminal justice system. LU (Apr 26) 2018 SC
LU(Apr 27) 2018 SC
Criminal Trial — Indian Penal Code, 1860; S. 325 —
Imposition of jail sentence and fine both is mandatory
once the accused is held guilty for the offence punishable
under Section 325 IPC which may extend upto 7 years.
LU(Apr 27) 2018 SC
LU(April 28) 2018 SC
Modification of Order – Submission of Counsel without
instruction of client – Complaint against Lawyer to Bar
Council – As order passed based on the submission made by
Lawyer without instruction of client, Order partly set aside.
LU(April 28) 2018 SC
43 44
LU(Apr 29) 2018 SC
Code of Criminal Procedure, 1973; S. 256 — Negotiable
Instruments Act, 1882; S. 138 —Whether dismissal of
complaint due to non-appearance of the complainant
amounts to acquittal of the accused under section 256 Cr.P.C.
– Held: In the facts of the case, that dismissal of the complaint
for non-appearance of the complainant amounts to acquittal
as contemplated in Section 256 of the Code of Criminal
Procedure. LU(Apr 29) 2018 SC
LU(Apr 30) 2018 SC
Service Matter – Contract Employee – Whether can claim
for renewal of contract – Held: No contract employee has a
right to have his or her contract renewed from time to time.
LU(Apr 30) 2018 SC
LU (Apr 31) 2018 SC
Land Acquisition Act, 1894 ; S 28-A — Determination of
compensation have been rejected on the ground of delay
— Held: limitation is prescribed and it is expected that the
aggrieved party takes remedies within such prescribed time,
the delay can be extended in appropriate cases LU (Apr 31)
2018 SC
LU (Apr 32) 2018 SC
Code of Criminal Procedure, 1973; S. 167 (2) – Grant of
statutory bail – Application filed for extension of time for
filing chargesheet —— Such prayer allowed – Chargesheet
filed within the extended time – Held: Grant of statutory bail
of the appellant vide application dated 2nd March, 2017, on
the ground of default, did not survive for further consideration
— Right to grant of statutory bail would have enured to the
accused only after rejection of the request for extension of
time prayed by the Additional Public Prosecutor. LU (Apr
32) 2018 SC
LU(Apr 33) 2018 SC
Kerala Buildings (Lease and Rent Control) Act, 1965; Ss.
11(4)(iii) and 11(4)(iv) — Eviction on one the ground of two
— whether the landlords are entitled proceed for a decree for
eviction on other grounds taken by him in the petitions for
eviction — Held, merely because the landlords have taken
possession on the basis of an order for eviction granted on
one ground, that does not mean that the surviving grounds
have become non-est – appeal allowed. LU(Apr 33) 2018 SC
LU(Apr 34) 2018 SC
Land Encroachment Act, 1905; S. 6, 7 – Evidence Act,
1872; S. 90, 110 – Presumption of title as a result of
possession, can arise only where facts disclose that no title
vests in any party — Possession of the plaintiff is not prima
facie wrongful, and title of the plaintiff is not proved — It
certainly does not mean that because a man has title over
some land, he is necessarily in possession of it — if at any
time a man with title was in possession of the said property,
the law allows the presumption that such possession was in
continuation of the title vested in him — person must
45 46
establish that he has continued possession of the suit
property — other side claiming title, must make out a case of
trespass/ encroachment etc — mere acceptance of municipal
tax or agricultural tax by a person, cannot stop the State
from challenging ownership of the land — Nor can such a
presumption arise in case of grant of loan by a bank upon it
hypothecating the property — revenue records confer title,
for the reason that they merely show possession of a person
— Held: A revenue record is not a document of title — It
merely raises a presumption in regard to possession. LU(Apr
34) 2018 SC
LU(Apr 35) 2018 ALL
Writ Petition — Minor rape victim prayed for termination
of pregnancy – Held: we feel that the ends of justice will be
met by issuing following directions to the opposite parties:-
(1)We direct and allow the Child Welfare Committee of District
Lucknow to take over the cause of adoption of the child born
to “A” on 26th October, 2015, who is presently in the care of
Paediatrics Department of King George’s Medical University,
Lucknow. The Department shall handover the child as and
when the doctors find that the child is medically fit to be
handed over to the committee. The committee shall,
thereafter, act in the manner provided in the judgment. The
Member Secretary of the State Legal Services Authority in
consultation with the amicus curiae shall supervise the
process of adoption.
(2)As soon as “A” regains her mental balance and equilibrium,
she will be allowed admission in a proper class in an
appropriate school. The first and foremost preference should
be given to any Kasturba Gandhi Girls’ School. These are
residential schools in which girls are allowed to stay and
taken care of completely. They are given food, shelter, books,
uniforms and matterial for recreation also. If “A” or her
parents approach the authorities of Kasturba Gandhi
Residential School of her choice, admission should be allowed
to her. If an application is made to the Basic Shiksha Adhikari
of the District it shall be his duty to ensure admission of “A”
in one of the best run schools of Kasturba Gandhi Residential
Schools of the District.
(3)If “A” chooses not to go to residential school then a
Government Girls’ Inter College of her choice will allow her
admission without insisting on any entrance examination or
the criteria of selection on merit basis. The State Government
should ensure that education is provided free of costs to “A”.
She will be allowed full freeship of fees and other charges
whatsoever.
(4)It shall be the duty of the Principal of the college concerned
to ensure that the teachers of the college, staff and the
students do not discriminate her in any manner. All possible
mental, moral and psychological help should be given by the
teachers to help her gain strength to face the challenges of
life. The principal should also ensure that the past life of “A”
is not propagated and she is treated as another normal
student of the school.
(5)If “A” wants to continue her studies after 10+2 Standard
(Intermediate), admission should be given to her in any
47 48
government degree college with full free ship of fee. This will
continue till graduation.
(6)In addition to payment of Rs.3,00,000/- as compensation
under Rani Lakshmi Bai Mahila Samman Kosh Rules, 2015,
the State Government shall make a fixed deposit of a sum of
Rs.10,00,000/- (Rupees Ten lacs) in favour of “A” in any
nationalized bank which will be given to her only when she
reaches the age of 21 years. The District Magistrate of the
District where the family of “A” chooses to live henceforth
will ensure that bank account is opened in the name of “A”
in any nationalized bank, chosen by her father. It is made
clear that at the maturity of the aforesaid fixed deposit, only
“A” will be entitled to get the money.
(7)Superintendent of Police of the District where “A” and her
family choose to reside will ensure the safety, security and
dignity of the family. No one from the society should be
allowed to degrade, discriminate or excommunicate the victim
or her family on the ground of unfortunate incident of rape.
(8)If “A” applies for any apprenticeship in any available
scheme or in any vocational course of any Government
department or any other instrumentality of the State,
preference should be given to her in such matters.
(9)After attaining the age of majority, some suitable job be
also provided to her according to her ability / qualifications.
Such security of job is the surest way of bringing her up in
the main stream once again. When occasion arises the
petitioner shall have the liberty of moving an application to
the Chief Secretary of the State to ensure that a suitable job
is provided to her.
(10)The N.G.O.s or any other agency which wants to help the
victim and her family in any manner, will be welcome to do
so and earn the appreciation of this Court as well as of the
society in general. LU(Apr 35) 2018 ALL
LU(Apr 36) 2018 SC
Indian Stamp Act, 1899 : Art. 45, Sec. 35 – Indian
Registration Act, 1908; Sec.17,49 – Hindu Succession
Act, 1955 – Code of Civil Procedure,1908 ; Order 13,
Rule 3 – Civil Procedure Code, 1908; Order 7 Rule 11—
Difference between Memorandum of family settlement
and Family Settlement – the alleged memorandum of family
settlement divided the entire property between plaintiff and
defendant and there is relinquishment of the rights of other
heirs of the properties and as such it is Family Settlement
and not memo (Para 11) – memo does not create any right —
the document was compulsorily registrable under Section
17 of the Registration Act as there was relinquishment of
share – it should be stamped in proper manner as specified
in the Indian Stamp Act – document also being not stamped
could not have been accepted in evidence (Para 13) — whether
the said document could have been accepted by the trial
court in evidence or not — whether the said unregistered
and properly not stamped document which was inadmissible
in evidence could have been used for any collateral purpose
— Held: the same are not admissible in evidence for the
49 50
purpose of proving primary purpose of partition – unstampped
instrument is not admissible in evidence even for collateral
purpose, until the same is impounded by paying stamp with
penalty . LU(Apr 36) 2018 SC
LU(Apr 37) 2018 CAL
West Bengal Estate Acquisition Act, 1953; S. 5A —- West
Bengal Land Reforms and Tenancy Tribunal Act, 1997 –
West Bengal Land Reforms Act, 1956 – Revenue Officer
hold that the transfer made by Sarat Chandra Ghosh, by
way of family settlement to his sons, was not bona fide —
The petitioners approached the tribunal by filing a
Miscellaneous Application for securing the compliance of the
direction of the Civil Court — The tribunal, dictated the
petitioners to prefer appeal before the appellate authority
holding that the order under Section 5A of the West Bengal
Estate Acquisition Act, 1953 has been appealable — in a
suit, in which State of West Bengal was a party, the title of
these petitioners was declared and their possession was
confirmed — The State of West Bengal and, naturally, its
men, agents and employees were restrained from giving effect
to the order dated January 14, 1969 disposing of the
proceeding under Section 5A of the West Bengal Estate
Acquisition Act, 1953 — Held: there was no escape from not
complying with the directions passed by the competent civil
court — The settlement records of right are not the
documents of title — Therefore, it must yield to the decree
of the civil court. LU(Apr 37) 2018 CAL
LU (Apr 38) 2018 P & H
Protection of Women from Domestic Violence Act, 2005; —
Whether limitation in filing the complaint under the DV
Act, 2005 is one year – Held: In case of subsisting
relatiohship of husband and wife, there is no limitation.
Meaning thereby that the complaint under the D.V. Act, can
be filed at any time as the physcical and mental harassment
within the family is a continuing offence.
Protection of Women from Domestic Violence Act, 2005; —
Whether complaint under D.V.Act, is maintainable where
a case under Section 498-A of the Indian Penal Code is
already pending? – Held: It is held that both proceedings
are of different nature and can be filed separately. In this
case the proceedings under the D.V Act, can continue on the
same set of facts of a case under Section 406, 498-A IPC. LU
(Apr 38) 2018 P & H
LU(Apr 39) 2018 SC
Negotiable Instruments Act, 1882; S. 138 – Statutory notice
send through Fax – Whether valid – Held: Legislature
contemplated that notice in writing should be given to the
drawer of the cheque, the legislature must be presumed to
have been aware of the modern devices and equipment
already in vogue and also in store for future – When
Parliament contemplated notice in writing to be given we
cannot overlook the fact that Parliament was aware of modern
devices and equipment already in vogue — Notice envisaged
in clause (b) of the proviso to Section 138 was transmitted
51 52
by fax it would be compliance with the legal requirement. LU
(Apr 39) 2018 SC
LU (Apr 40) 2018 SC
Code of Criminal Procedure, 1973; S. 125 (3) – Limitation
to file claim for due maintenance – Considering the peculiar
circumstances of the case the Court held that the bar under
Section 125(3) cannot be applied. LU (Apr 40) 2018 SC
LU (April 41) 2018 SC
Evidence Act, 1872; S. 65B (4) – Electronic record —
Requirement of certificate – Held: Furnishing certificate
is to be applied only when such electronic evidence is
produced by a person who is in a position to produce such
certificate being in control of the said device and not of the
opposite party — Requirement of certificate under Section
65B(h) is not always mandatory; LU (Apr 41) 2018 SC
LU (Apr 42) 2018 SC
Evidence Act, 1872; S. 65B (2) – Electronic record — Specified
conditions — (i) The electronic record containing the
information should have been produced by the computer
during the period over which the same was regularly used to
store or process information for the purpose of any activity
regularly carried on over that period by the person having
lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record
or of the kind from which the information is derived was
regularly fed into the computer in the ordinary course of the
said activity;
(iii) During the material part of the said period, the computer
was operating properly and that even if it was not operating
properly for some time, the break or breaks had not affected
either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a
reproduction or derivation from the information fed into the
computer in the ordinary course of the said activity.; LU (Apr
42) 2018 SC
Evidence Act, 1872; S. 65B (4) – Electronic record —
Conditions to be fulfilled — (a) There must be a certificate
which identifies the electronic record containing the
statement;
(b) The certificate must describe the manner in which the
electronic record was produced;
(c) The certificate must furnish the particulars of the device
involved in the production of that record;
(d) The certificate must deal with the applicable conditions
mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device. LU (Apr 42) 2018 SC
Evidence Act, 1872; S. 65B (4) – Electronic record –
Certificate — The person issuing certificate needed only to
state in the certificate that the same is to the best of his
53 54
knowledge and belief — Such a certificate must accompany
the electronic record like computer printout, Compact Disc
(CD), Video Compact Disc (VCD), pen drive, etc., pertaining
to which a statement is sought to be given in evidence, when
the same is produced in evidence. LU (Apr 42) 2018 SC
Evidence Act, 1872; S. 65B (4) – Electronic record — If an
electronic record as such is used as primary evidence under
Section 62 of the Evidence Act, the same is admissible in
evidence, without compliance of the conditions in Section
65B of the Evidence Act. LU (Apr 42) 2018 SC
LU (Apr 43) 2018 SC
Negotiable Instruments Act, 1882; S. 138; Security
Cheque –The word Security Cheque has been used in the
agreement — The said expression refers to the cheques being
towards repayment of installments — The repayment becomes
due under the agreement, the moment the loan is advanced
and the installment falls due — Once the loan was disbursed
and installments have fallen due on the date of the cheque
as per the agreement, dishonour of such cheques would fall
under Section 138 of the Act — The cheques undoubtedly
represent the outstanding liability. LU (Apr 43) 2018 SC
LU (April 44) 2018 DEL
Passport Act, 1967 – Whether father’s name is mandatory
in Passport — Being divorced the wife brought up the child
as single mother — Biological father had completely abdicated
his responsibilities – Passport authority insisted upon
petitioner No. 2 mentioning her father’s name in the
application — Name of the biological father in the Passport
only if it is a requirement in law, like standing instructions,
manuals etc. In the absence of any provision making it
mandatory to mention the name of one’s biological father in
the Passport, the respondents cannot insist upon the same
— Court is of the view that mother’s name is sufficient in
certain cases like the present one to apply for Passport,
Especially as a single woman can be a natural guardian and
also a parent — Directed to modify software and accept the
application and issue her a Passport without insisting upon
mentioning her father’s name. LU (Apr 44) 2018 DEL
LU (Apr 45) 2018 SC
Fundamental Right – To speak out ideas freely and express
thoughts adequately — Curtailment of an individual writer/
author’s right to freedom of speech and expression should
never be lightly viewed. LU (Apr 45) 2018 SC
LU (Apr 46) 2018 SC
Evidence Act, 1872; S. 33 — Whether the statements made
by a witness in an earlier judicial proceeding can be
considered relevant for proving the truth or facts stated in a
subsequent judicial proceeding — Section 33 of the Evidence
Act allows for this inter alia where the witness is incapable
of getting evidence in the subsequent proceeding LU (Apr
46) 2018 SC;
Evidence Act, 1872; S. 65B — Admissibility of electronic
record — not admissible unless it is accompanied by a
certificate as contemplated under Section 65B (4) of the Indian
55 56
Evidence Act – CDR has been marked as Exhibit without
certificate during trial — objection relating to the mode or
method of proof has to be raised at the time of marking of
the document as an exhibit and not later — The mode or
method of proof is procedural and objections, if not taken at
the trial, cannot be permitted at the appellate stage – Held:
an objection that CDRs are unreliable due to violation of the
procedure prescribed in Section 65 B (4) cannot be permitted
to be raised at this stage as the objection relates to the mode
or method of proof. LU (Apr 46) 2018 SC;
LU (Apr 47) 2018 SC
Consumer Protection Act, 1986; — Consumer complaint
by Consumer Association formed by affected flat buyers –
Whether maintainable – Held: consumer complaint on behalf
of more than then consumers can be filed by a recognized
consumer association — The only requirement would be to
direct each and every allottee on whose behalf the complaint
is filed to file an affidavit concerning the prayers to the extent
they pertain to his individual grievances — If the aggregate
value of the services in respect of the flat buyers on whose
behalf this complaint is filed is taken exceeds Rs. 1 crore
the National Commission does possession the requisite
jurisdiction to entertain the complaint – Appeal challenging
the observation of National Commission upheld by the
Supreme Court; LU (Apr 47) 2018 SC;
LU (Apr 48) 2018 SC
Motor Vehicles Act; 1988; Insurance claim against motor
accident — Whether the vehicle was driving in wrong side –
Held: The Spot where the motor vehicle was found lying after
after the accident cannot be the basis to assume that it was
driven in or around that spot at the relevant time – It can
safely inferred that after the accident of this nature in which
the appellant suffered severe injuries necessitating
amputation of his right leg above the knee level, the
motorcycle would be pushed forward after the collision and
being hit by a high speeding jeep. LU (Apr 48) 2018 SC
LU (Apr 49) 2018 SC
Hindu Marriage Act, 1955; S. 13 – Divorce on the ground
of cruelty against wife – Wife attempted to commit suicide by
pouring kerosene without any reason – Observed that no
husband would ever be comfortable with or tolerate such an
act by his wife and if the wife succeeds in committing suicide,
then one can imagine how a poor husband would get
entangled into the clutches of law, which would virtually ruin
his sanity, peace of mind, career and probably his entire life
— The mere idea with regard to facing legal consequences
would put a husband under tremendous stress – Held: Only
this one event was sufficient for the Appellant husband to
get a decree of divorce on the ground of cruelty; LU (Apr 49)
2018 SC
Hindu Marriage Act, 1955; S. 13 –; Wife’s claim to get
separated from her in laws and to live separately with
husband — Observed that In India, generally people do not
subscribe to the western thought, where, upon getting
married or attaining majority, the son gets separated from
the family – A wife is expected to be with the family of the
husband after the marriage — No husband would tolerate
57 58
this and no son would like to be separated from his old
parents and other family members, who are also dependent
upon his income – Held: The persistent effort of the
Respondent wife to constrain the Appellant to be separated
from the family would be torturous for the husband; LU (Apr
49) 2018 SC
LU(April 50) 2018 CAL
Code of Civil Procedure, 1908; O. 7 R. 11 – What to consider
while Rejection of plaint – Held: Court is required to consider
the pleadings made out in the plaint itself and the annexures
thereto for ascertaining as to whether the plaint is liable to
be rejected on any of the grounds as mentioned therein —
Court cannot consider any other document and/or material
beyond the pleadings made out in the plaint and/or
annexures thereto. LU (Apr 50) 2018 CAL
Code of Civil Procedure, 1908; O. 7 R. 11 – Whether the
plaint as a whole can be rejected when part of the plaintiff’s
claim can be adjudicated upon by the Civil Court — Absence
of independent cause of made the plaint liable to be rejected
in whole. LU (Apr 50) 2018 CAL
West Bengal Cooperative Societies Act, 2006; S. 102 —
Suit challenging wrongful termination of the building contract
— Whether the plaint is liable to be rejected as it is barred
under the provision contained in Section 102 of the West
Bengal Cooperative Societies Act, 2006 – In absence of any
contradiction it can be assumed that the business of housing
co-operative society is of constructing dwelling units for its
members — the dispute between the plaintiff and the
Cooperative Society concerns the business of the said
Cooperative Society and it relates to the affairs of the said
Cooperative Society and such dispute is a dispute within the
meaning of the dispute under Section 4(25) of the West Bengal
Cooperative Societies Act, 2006 which is capable of resolution
by the Registrar as per the provision of Section 102 of the
said Act — the Civil Court as per the provision of Section
102 (4) of the said Act. LU (Apr 50) 2018 SC;
LU (Apr 51) 2018 SC
West Bengal Cooperative Societies Act, 1983; S. 79, 80 –
Nomination of share in Cooperative Society and disposal of
share of the deceased in the Co-operative Society – Held:
Where a member of a cooperative society nominates a person
in consonance with the provisions of the Rules, on the death
of such member, the cooperative society is mandated to
transfer all the share or interest of such member in the name
of the nominee — The rights of others on account of an
inheritance or succession is a subservient right — Only if a
member had not exercised the right of nomination under
Section 79, then and then alone, the existing share or interest
of the member would devolve by way of succession or
inheritance — However, necessary to notice that Rule 127
postulates nomination only in favour of a person “belonging
to his family” LU (Apr 51) 2018 SC;
59 60
LU (Apr 52) 2018 SC
Hindu Marriage Act, 1955; S. 13 – Validity of Divorce Decree
passed by Foreign Court – Held: The present decree
dissolving the marriage passed by the foreign court is without
jurisdiction according to the Act as neither the marriage was
celebrated nor the parties last resided together nor the
respondent resided within the jurisdiction of that Court —
The decree is also passed on a ground which is not available
under the Act which is applicable to the marriage — the decree
has been obtained by the 1st appellant by stating that he
was the resident of the Missouri State when the record shows
that he was only a bird of passage there and was ordinarily a
resident of the State of Louisiana – Such divorce decree cannot
be taken into consideration.
Hindu Marriage Act, 1955; S. 13 – Validity of Divorce Decree
passed by Foreign Court – Rules framed are The jurisdiction
assumed by the foreign court as well as the grounds on which
the relief is granted must be in accordance with the
matrimonial law under which the parties are married. The
exceptions to this rule may be as follows: (i) where the
matrimonial action is filed in the forum where the respondent
is domiciled or habitually and permanently resides and the
relief is granted on a ground available in the matrimonial
law under which the parties are married; (ii) where the
respondent voluntarily and effectively submits to the
jurisdiction of the forum as discussed above and contests
the claim which is based on a ground available under the
matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance
with the provisions of the matrimonial law of the parties. LU
(Apr 52) 2018 SC
LU (Apr 53) 2018 SC
Hindu Marriage Act, 1955; S. 13B – Waiver of Statutory
period in Mutual Divorce – Respondent is scheduled to travel
abroad and will not be able to return after the statutory period
– Both the parties are aware of the consequences – Statutory
period waived. LU (Apr 53) 2018 SC
LU (Apr 54) 2018 SC
Hindu Marriage Act, 1955; Sec. 13B – Waiver of statutory
period — Whether, statutory period prescribed under Section
13-B(1) of the Act is mandatory or directory — if directory,
whether could be dispensed with even by the High Court in
exercise of its writ/appellate jurisdiction — jurisdiction of
this Court under Article 142 could not be used to waive the
statutory period of six months for filing the second motion
under Section 13B, as doing so will be passing an order in
contravention of a statutory provision — this is not a case
where there has been any obstruction to the stream of justice
or there has been injustice to the parties, which is required
to be eradicated, and this Court may grant equitable relief.
LU (Apr 54) 2018 SC
LU (Apr 55) 2018 SC
Hindu Marriage Act, 1955; Sec. 13B – Waiver of statutory
period – Application filed on 09.09.2009 – Direction issued
61 62
on 25.11.2009 to wait for six months — Power under Article
142 had been exercised in cases where the Court found the
marriage to be totally unworkable, emotionally dead, beyond
salvage and broken down irretrievably — This power was
also exercised to put quietus to all litigations and to save the
parties from further agony — delay in disposal of the case by
the Family Court – not a fit case for delay — petition is
dismissed . LU (Apr 54) 2018 SC
LU (Apr 56) 2018 SC
Hindu Marriage Act, 1955; Sec. 13B – Waiver of statutory
period – Application for transfer was filed – Considering
further development during pendency of the transfer
application, direction given to file application under section
13B before the same Lower Court along with a petition to
dispense with the statutory period and on filing such
application Lower Court to dispense with the statutory period.
. LU (Apr 56) 2018 SC
LU (Apr 57) 2018 SC
Consumer Protection Act, 1986 – Medical Negligence –
Principles for deciding medical negligence :
I. Negligence is the breach of a duty exercised by omission to
do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent
and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon
an error of judgment.
III. The medical professional is expected to bring a reasonable
degree of skill and knowledge and must exercise a reasonable
degree of care. Neither the very highest nor a very low degree
of care and competence judged in the light of the particular
circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably
competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for
genuine difference of opinion and one professional doctor is
clearly not negligent merely because his conclusion differs
from that of other professional doctor.
VI. The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success
for the patient rather than a procedure involving lesser risk
but higher chances of failure. Just because a professional
looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he
performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable
if the course of action chosen by him was acceptable to the
medical profession.
63 64
VIII. It would not be conducive to the efficiency of the medical
profession if no Doctor could administer medicine without a
halter round his neck.
IX. It is our bounden duty and obligation of the civil society
to ensure that the medical professionals are not unnecessary
harassed or humiliated so that they can perform their
professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved
from such a class of complainants who use criminal process
as a tool for pressurizing the medical professionals/hospitals
particularly private hospitals or clinics for extracting uncalled
for compensation. Such malicious proceedings deserve to be
discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection
so long as they perform their duties with reasonable skill
and competence and in the interest of the patients. The
interest and welfare of the patients have to be paramount for
the medical professionals. LU (Apr 57) 2018 SC;
LU (Apr 58) 2018 SC
Delhi Land Reforms Act, 1954 – Use of agricultural land for
other purposes – Consequences thereof — Where the land
has not been used for any purpose contemplated under the
Land Reforms Act and has been built upon, it would cease to
be agricultural land — Once agricultural land loses its basic
character and has been converted into authorized/
unauthorized colonies by dividing it into plots, disputes of
plot holders cannot be decided by the revenue authorities
and would have to be resolved by the civil court; LU (Apr 58)
2018 SC
LU (Apr 59) 2018 SC
Limitation Act, 1963; Art. 137 — Execution of
preliminary decree for partition – Limitation thereof – Held:
Until final decree is passed in a partition suit, limitation will
not come into play because the suit continues, till final decree
is passed; LU (Apr 59) 2018 SC
LU (Apr 60) 2018 SC
Code of Civil Procedure, 1908; S. 99 — No decree can be
reversed or substantially varied in appeal on account of
misjoinder or non-joinder of parties LU (Apr 60) 2018 SC
____
65 66