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Transcript of mlj193
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Vol-III January, 2008
Part-1
IMPORTANT CASE LAWSIMPORTANT CASE LAWS
Compiled by
Tamil Nadu State Judicial AcademyChennai 28
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SUPREME COURT CITATIONSSUPREME COURT CITATIONS
(2008) 1 MLJ 45 (SC)Ram Prakash Gupta and Others Vs. Rajiv Kumar Gupta and Others
(A) *****
(B) Code of Civil Procedure (5 of 1908), Order 7, Rule 11 (d)
Rejection of plaint, under Order 7, Rule 12 Mandatory requirements, under
Limitation Act (36 of 1963), Article 59 Application for rejection of plaint on ground
limitation, allowed Respondents' further filing 2 suits, obtaining decree fraudulently
Plaintiff handicapped person On coming to know of said decree, taking steps at earliest,
filing suit for declaration As per Article 59, Limitation Act, suit to be filed within 3
years of date of knowledge Knowledge mentioned in plaint not incomplete or
inadequate Both lower Courts failed to advert to relevant averments in plaint Order
rejecting plaint set aside.
RATIONES DECIDENDI
I. Before passing an order in an application for rejection ofplaint under Order 7, Rule 11 (d), Code of Civil Procedure,it is but proper to verify the entire plaint averments.
II. The plea of limitation taken after cross examination of theparty cannot form the basis for a contention for rejectionof plaint.
(2008) 1 MLJ 193 (SC)Asokan Vs. Lakshmikutty and Others
Transfer of Property Act (4 of 1882), Sections 122 and 123 Indian Evidence
Act (1 of 1872), Sections 91 and 92 Deed of gift Suit for declaration filed by
donee/appellant Trial Court decreed said suit opining that valid gift could not have been
rescinded by mere fact that donors feeling towards donee underwent a change
However, it was reversed by First Appellate Court and High Court opining that deeds in
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question not accepted by donee/appellant as there had been no overt act of possession on
part of appellant Appeal Deeds of gift not onerous in nature Factum of handing over
of possession of properties which were subject matter of gift, stated in deeds of gift
themselves Averment made in deed of gift in regard to handing over of possession is
sufficient proof of acceptance thereof by donee It is not necessary to prove any overt
act of possession on part of appellant since express acceptance is not necessary
Judgments of High Court and as also First Appellate Court set aside and that of trial
Court restored Appeal allowed.
RATIONES DECIDENDI
I. While determining the question as to whether delivery of possession
would constitute acceptance of a gift or not, the relationship betweenthe parties plays an important role. Even a silence may sometimeindicate acceptance when the donee was aware of the recitals containedin deed of gift and it is not necessary to prove any overt act in respectthereof since an express acceptance is not necessary for completingthe transaction of gift.
II. When the deed of gift catergorically state that the propety had beenhanded over to the donee and he had accepted the same, it issufficient proof of acceptance thereof by the donee. Even assumingthat the legal presumption raised in a case of this nature is arebuttable one, the onus should be on the donor and not on the donee.
III. Once a gift is complete, the same cannot be rescinded. For any reasonwhatsoever, the subsequent conduct of a donee cannot be a ground forrecission of a valid gift.
(2008) 1 MLJ 155 (SC)Divisional Manager, Aravali Golf Club and Another Vs.Chander Hass
and Another
(A) *****
(B) Seperation of Powers Limits of powers of judiciary There is
broad separation of powers under Constitution Each organ of State must not encroach
into each other's domains In name of judicial activism Judges could not cross there
limits and try to take over functions which belong to another organ of State
Adjudication must be done within system of historically validated restraints and
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conscious minimization of Judges' preferences Judges could not create law and seek to
enforce it.
(c) Judicial Restraint Only Judiciary has power to declare limits of
jurisdiction of all three organs of State Such power should be exercised by judiciary
with utmost self-restraint Judicial restraint tends to protect independence of judiciary
Judiciary should confine itself to its proper sphere realizing that in democracy many
matters and controversies best resolved in non-judicial setting.
RATIO DECIDENDI
The Court cannot direct the creation of posts. Creation and sanctionof posts is a prerogative of the executive or legislative authoritiesand the Court cannot arrogate to itself this purely executive or
legislative function, and direct creation of posts in any organization.
(2008) 1 MLJ 144 (SC)Prabha Arora and Another Vs. Brij Mohini Anand and Others
U.P. Urban Buildings ( Regulation of Letting Rent and Eviction) Act, 1972,
Section 21 (1) (a) Eviction petition Subsequent events Changed circumstances
during pendency of the petition Must be taken into consideration Landlord filing
eviction petition for running tuition classes Petition rejected During pendency of
appeal trust was created over the property involved in the eviction petition Need
mentioned in the petition disappears Eviction petition has to be rejected.
RATIO DECIDENDI
Where in an eviction petition possession is sought for by thelandlord for personal requirements, the said requirement must
not only exist on the date of the filing of the petition but mustalso subsist till the final decree for an order of eviction is made.If in the mean time events crop up which would show that thelandlord's requirement no longer subsists then the action must fail.
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2008 (1) CTC 74Mohannakumaran Nair Vs. Vijayakumaran Nair
Code of Civil Procedure, 1908 ( 5 of 1908) , Section 20 Parties were not
residing within local limits of jurisdiction of Court when transaction taken place
Plaintiff was residing in Saudi Arabia Material date for purpose of invoking Section 20
of Code of Civil Procedure is one of institution of Suit and not the subsequent fact that
Defendant started residing in Kerala permanently and said fact would not confer
territorial jurisdiction.
2008 (1) CTC 161Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and
others
Code of Civil Procedure, 1908 (5 of 1908), Section 152 Section 152
empowers Court to correct its own error in judgment, decree or order from any accidental
slip or omission It is general inherent power of Court Court has to see that records are
true and present correct state of affairs Court cannot, exercising powers under Section
152, review its judgments Error in decree may be corrected both under provisions of
Sections 151 and 152 Accidental slip or omission can be on part of Court or on part of
its ministerial officers or traceable to conduct of parties themselves Error in description
of property in Suit which had been decreed could be corrected and decree be amended
under provisions of Section 152 particularly when statements contained in body of plaint
sufficiently described suit lands Amendment order by Trial Court and upheld by High
Court confirmed.
2008 (1) CTC 173Mahabir Singh Vs. Subhash and others
Code of Civil Procedure, 1908 ( 5 of 1908), Order 9, Rule 13 Limitation Act,
1963 (36 of 1963), Section 3 & Article 123 Defendant seeking to set aside ex-parte
decree to establish that either summons was not served on him or he had sufficient cause
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for remaining absent on date fixed for hearing Suit ex-parte When defendant shown to
have knowledge of decree prior to filing of Application for setting aside same, period of
limitation would be reckoned from that day and Application filed after one and a half
years after he came to know about passing of ex-parte decree is barred by limitation No
Court can entertain any Application or Suit if same has been filed after expiry of period
of limitation.
HIGH COURT CITATIONSHIGH COURT CITATIONS
(2008) 1 MLJ 122Manickavasagam Vs. Ammayappa Pillai and Another
(A) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 Restoration
petition dismissed On ground application for condonation of delay not filed therewith
When petition presented, no objection by Registry regarding limitation Registry
numbering restoration petition Fault of Registry, not of appellant Progmatic approach
necessary when dealing with restoration petition filed after delay Should not be
dismissed on mere technicalities.
(B) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 Restoration
petition dismissed on ground counsel for appellant reported no instructions - Ex-parte
order Held, counsel to inform client by registered post of his inability to appeal Only
on receipt of postal acknowledgement, counsel to report no instructions to Court.
RATIONES DECIDENDI
I. Restoration petitions filed after delay should be dealt with a
pragmatic approach. Such petitions should not be dismissedon ground of mere technicalities.
II. It is the counsel's duty to inform his client by registered post,of his inability to appear; only on receipt of postal acknowledgementthereto can he report no instructions to the Court.
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(2008) 1 MLJ 186Balasubramanian Vs. Shanthi
(A) Pondicherry Buildings ( Lease and Rent Control) Act (1969), Sections 10
(2) (i) and 10 (3) (a) (iii) Eviction Application for eviction of respondent- tenant on
ground of personal use and occupation Impugned order dismissing same Revision
Petitioner physically handicapped and he was also carrying on business in rented
premises License obtained by landlord to carry on business in premises in question -
Requirement of premises in question for personal use and occupation justified As such,
impugned order set aside Eviction order passed Revision petition allowed.
RATIO DECIDENDI
Once the license has been issued by the Corporation to the landlordto carry on his business in the premises in question, there cannot beany legal impediment for ordering eviction on the ground of personaluse and occupation particularly when the landlord is a physicallyhandicapped and he is also carrying on business in the rented premises.
2008 (1) CTC 295Vijayan @ Jayapandian and others Vs. State, rep by Inspector of Police,Chidambaram Town Police Station, Chidambaram, Cuddalore District
Evidence Act, 1872 (1 of 1872), Section 30 Confession of co-accused
Value of evidence of Confession can be considered against other accused only if such
co-accused has been tried jointly for same offence along with other accused Decision of
Apex Court in Suresh Budharmal Kalani Vs. State of Maharashtra, AIR 1998 SC 3258
relied on.
2008 (1) CTC 308Vincent Lourdhenathan Dominique and another Vs. Josephine Syla
Dominique
Registration Act, 1908 (16 of 1908), Section 17 Registration of family
arrangement and guidelines regarding admissibility of unregistered family arrangement
Family arrangement that purports to create, declare, assign, limit and extinguish right,
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title and interest over immovable properties and therefore document is requited to be
properly stamped and duly registered Family arrangement which records at later point
of time of partition of properties that had already taken place and given effect to need not
be registered contents of documents alone should be looked into and nomenclature is
not guiding aspect to make such determination Family arrangement which allotted
properties and did not record earlier partition required registration and unregistered
document cannot be admitted in evidence Tests laid down in A.C. Lakshmipathy Vs.
A.M. Chakrapani Reddiar, 2001 (1) CTC 112 followed.
(2008) 1 MLJ 349
Sheik Allaudin and Others Vs. Annibal Thamilarasi Jesintha
Code of Civil Procedure ( 5 of 1908), Section 50 Legal representatives
A person living with the tenant or having continuous association with him as a member
of tenant's family until his death can be treated as his legal representative for proper
conduct of the proceeding They can be impleaded as necessary parties in execution
proceedings for eviction Decision in Balasubramanya Gupta Vs. Saraswathiammal and
Others 2005-2-L.W.450 followed Revision dismissed.
RATIO DECIDENDI
Person having continuous association with the deceased tenant asa member of his family can be treated as his legal representative
for the purpose of impleading them in eviction proceedings.
(2008) 1 MLJ 354Sakunthala (Ms.) Vs. Anandarajan and Another
Code of Civil Procedure ( 5 of 1908), Order 3 Rule 2 Authorised
agent cannot be permitted to give evidence where the evidence is based on personal
knowledge of the principal Power agent appointed in the year 2003 cannot be expected
to know the normal course of business which happened in 1994.
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RATIONES DECIDENDI
I. An evidence of an accomplice need not necessarily be rejected,that the evidence requires corroboration in material particularsas well as the corroboration of the evidence connecting or tend toconnect the accused with the crime, that such accomplice witnessis reliable.
II. *****
(2008) 1 MLJ (Crl) 50Seetharaman and Others Vs. State rep. by Inspector of Police, AriyalurPolice Station
(A) *****
(B) *****
(c) Indian Evidence Act (1 of 1872), Section 25 & 27 Confession
before police, in the presence of VAO Leading to recovery Materials on record reveal
the arrest of the accused one day prior to the date of the arrest shown by the prosecution
Identifying the place of burial of the body of the deceased Recovery of properties of the
deceased not identified No probative value with arrest and recovery Conviction set
aside.
RATIONES DECIDENDI
I. To rely upon the Test Identification Parade, the persons requiredto identify an accused should have had no opportunity of seeinghim before the commission of the crime and before identification.
II. Once the fact has been discovered, Section 27 of the Evidence Act
1872 cannot again be made use of to rediscover the discovered fact.It would be a total misuse, even abuse of the provisions of Section 27.
(2008) 1 MLJ (Crl) 276Dr. R. Krishnamurthy, Editor and Partner, Dinamalar Tamil DailyNewspaper, Chennai-2 and Another Vs. Sun TV Network Limited,rep. by its Authorized Person, L. Jotheeswaran, Teynampet,Ch-18.
Indian Penal Code (45 of 1860), Sections 499 and 500 Code of Criminal
Procedure, 1973 (2 of 1974), Section 482 Complaint for defamation against Editor and
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Publisher of the daily news paper- Quash petition filed Complainant is a company
Whether the company has reputation apart from its property or trade Language of
Explanation 2 of Section 499 I.P.C. - Wide interpretation permissible Company is the
aggrieved person Juristic entry Complaint filed by a person's authorised
representative maintainable Merits of the allegations in the complaint cannot be
adjudicated in the quash proceedings Petition dismissed.
RATIO DECIDENDI
Complaint for defamation is maintainable at the instance of acompany, though a judicial entity, represented by itsauthorised representative for the loss of property and trade,
in view of explanation(2) to Section 499 Indian Penal Code,1860.
(2008) 1 MLJ (Crl) 193Vijayan @ Jayapandian and Others Vs. State rep. by Inspector of Police,Chidambaram Town Police Station, Chidambaram, Cuddalore District
(A) *****
(B) Indian Evidence Act (1 of 1872), Section 30 Confession of the
absconding accused Inadmissible against a co-accused unless they are jointly tried
Decision in Suresh Budharmal Kalani Vs. State of Maharashtra AIR 1998 SC 3258
followed Death sentence set aside Reference answered in favour of the accused
Appeals allowed.
RATIO DECIDENDI
The statement under Section 162 and 164 of the Code of CriminalProcedure, 1973 can be used either to corroborate or to contradictthe earlier version. Confession of a co-accused can be used against
other accused only if they are tried jointly for the same offence.
(2008) 1 MLJ (Crl) 255A. Ganesan Vs. Dr. S. Mahalingam
Code of Criminal Procedure 1973 (2 of 1974), Section 378 (3)
Limitation Act (36 of 1963), Section 5 Dishonour of cheque Appeal against acquittal
filed without special leave petition returned and represented with special leave petition
Leave granted Appeal admitted Accused filing a petition to recall the order granting
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leave, allowed because thespecial leave petition filed after the period of limitation for
filing the appeal Liberty given Petition to condone the delay of 15 days Calculation
of delay disputed Sufficient cause shown Limitation Act should be construed liberally
Substantial justice is to be done Delay condoned Petition allowed.
RATIO DECIDENDI
Limitation Act should be liberally construed to ensure that substantialjustice is done and length of delay is not relevant in the absence of anyinaction or lack of bonafide.
(2008) 1 MLJ (Crl) 251
Irulayee and Others Vs. State rep. by sub-Inspector of Police, AllWomen Police Station, Virudhunagar District
Indian Penal Code (45 of 1860), Sections 294(b) and 452 F.I.R. filed
only after seven days of occurrence The petitioners entered into the house of de-facto
complainant and abused her Even according to prosecution the occurrence taken place
inside the house of the defacto complainant Hence Section 294(b) of I.P.C. not attracted
Criminal tresspass alone cannot be maintained Proceedings before Judicial Magistrate
quashed Petition allowed.
RATIO RECIDENDI
In order to bring the offence under Section 294(b) of Indian PenalCode, 1860 the occurrence must have taken place in a public placeor near public place. When the charge under Section 294 (b)is not made out then the offence of criminal tresspass alonecannot be maintained, in the absence of any of the offencealong with trespass to make out as a criminal house-trespass.
(2008) 1 MLJ (Crl) 271Saravannan Vs. State rep. by Inspector of Police, Uthangaral PoliceStation , Dharmapuri District
Indian Penal Code (45 of 1860), Section 304 (ii) Conviction under
Section 304 (ii) Indian Penal Code Appeal filed by appellant P1 to P3 Ocular
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witnesses Turned hostile P.W.4 and P.W.9 inconsistent statements No credit can be
given to the evidences given by P.W. 4 and P.W. 9 Judgment set aside Accused
acquitted.
RATIO DECIDENDI
When there is no valid reasoning given for non-examination of theinvestigation officer, the seizure of material objects cannot be takento be proved and the mere fact that the material objects wereseized from the place of occurrence would not advance argumentany further so as to warrant conviction under Section 304 (ii)Indian Penal Code, 1860.
2008 (1) CTC 369S. Thirugnanasambandam Vs. Kaliyaperumal Chettiar
Code of Civil Procedure, 1908 (5 or 1908), Order 8, Rule 6-A to 6-G When
Counter-claim has to be filed? - Counter-claim by the Defendant can be entertained at
any stage to avoid multiplicity of judicial proceedings Discretion is given to Court to
allow filing of additional written statement or counter-claim Court has to only consider
whether it is necessary for determining real question in controversy between parties and
that claim is not hit by law of limitation or exceeding pecuniary jurisdiction of the Court.
2008 (1) CTC 50The New India Assurance Co. Ltd., Catholic Centre, 913, Main Road,Koilpatti Vs. P. Chelladurai and Others
Motor Vehicles Act, 1988 (59 of 1988), Section 149 (2) (a) (ii) and (3)
Violation of Policy Condition Liability of Insurance Company Driver of Vehicle was
a minor boy of 15 years Minority admitted before Criminal Court and fine paid
Insurance Company need not prove that owner of vehicle consciously violated terms of
Policy by allowing a minor without licence to drive vehicle when driver was a minor
question of Insurance Company proving that owner of vehicle consciously violated
policy condition would not arise Insurance Company exonerated from liability
Claimant already withdrew 50% compensation deposited by Insurance Company
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Claimant to recover balance from insured Insurance Company also permitted to recover
50% withdrawn by claimant from insured.
2008 (1) CTC 97J. Naval Kishore Vs. D.Swarna Bhadran
Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule 27 - Receipt of
Additional Documents at Appellate Stage Certified copy of family arrangement sought
to be filed in Appeal as only photo copy had been filed during trial and person who
signed such document did not examine himself as witness in trial and original though
available during trial was not filed Glaring discrepancies found in two documents
Application for additional documents rejected.
2008 (1) CTC 97J. Naval Kishore Vs. D.Swarna Bhadran
Indian Evidence Act, 1872 (1 of 1872), Section 67 Secondary evidence
could be looked into only when non-production of original is satisfactorily explained
Possibility of interpolation in photo copy cannot be ruled out Photo copy of family
arrangement could not be entertained as no reason for not filing Original family
arrangement was given and original document was very much in existence.
*****
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