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Showing posts from June, 2015

Magistrate is not a Post Office = Magistrate, who is dealing with a complaint under Section 190 read with 200 Cr.P.C. has to apply his mind to find out as to whether the complaint makes out a prima facie case or not. Only, in the event, a prima facie case is made out, the complaint can be forwarded to the police for making investigation and to file a final report under Section 173 of the Code. Reasons are required to be spelt out for that satisfaction arrived at by the Magistrate. Perhaps, those reasons need not be very elaborate. Mechanically, no Magistrate can forward the complaints received to the police for investigation. Such measures would result in reducing the Court to that of a mere post office or to that of a sorting office attached to the Railway Mail Service. That is not the purpose which is sought to be achieved by the Code where provision is made for a genuine complainant to approach the competent Court for securing redressal for his grievance, when the police failed to act in the matter. I am, therefore, convinced that the entire exercise is an illegal one and hence, this petition is allowed. Accordingly, this criminal petition is allowed.-2015 Telangana & A.P.msklawreports

Magistrate is not a Post Office = Magistrate, who is dealing with a complaint under Section 190 read with 200 Cr.P.C. has to apply his mind to find out as to whether the complaint makes out a prima facie case or not.  Only, in the event, a prima facie case is made out, the complaint can be forwarded to the police for making investigation and to file a final report under Section 173 of the Code. Reasons are required to be spelt out for that satisfaction arrived at by the Magistrate.  Perhaps, those reasons need not be very elaborate. Mechanically, no Magistrate can forward the complaints received to the police for investigation.  Such measures would result in reducing the Court to that of a mere post office or to that of a sorting office attached to the Railway Mail Service.  That is not the purpose which is sought to be achieved by the Code where provision is made for a genuine complainant to approach the competent Court for securing redressal for his grievance, when the police failed

Or. VII, rule 11 of C.P.C.- Suit to set aside Lok Adalat on ground of fraud & collusion - Trial court returned the plaint as not maintainable - only remedy is to file writ - Their Lordship held that Whether or not the appellant is justified in his claim, that the award of the Lok Adalat is vitiated by fraud, are matters to be examined by the Court below. As the power to reject a plaint under Order 7 Rule 11(d) is to be exercised by the civil court only if the suit appears, from the statement in the plaint, to be barred by law, the court below erred in rejecting the plaint on the ground that a civil suit is not maintainable. The order under appeal is set aside. We make it clear that we have not expressed any opinion on the truth or otherwise of the appellants claim that the award of the Lok Adalat is vitiated by fraud. The Court below shall adjudicate the suit on its merits, and in accordance with law. - 2015 Telangana & A.P. msklawreports

They sought a decree in their favour, and against the defendants, to declare para 18 of the compromise recorded in O.S. No.481 of 2007 before the Lok Adalat dated 22.08.2007, in so far as it related to land admeasuring Ac.9.29 gts of land in Sy. Nos.271, 272 and 273 shown to have created rights in favour of defendant No.31 i.e., M/s. Bhargavi Constructions represented by Sri V. Ramachandra Rao, as nonest in law for having been obtained by fraud and collusion, by playing fraud upon the plaintiffs; and for grant of a permanent injunction restraining the defendants, especially defendant No.31, their agents, servants, employees etc., from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the suit schedule A, B and C properties. = The Court below had rejected the plaint solely on the ground that a civil suit cannot be filed, and the plaintiffs remedy is only to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.

Or.XV-A of the Code - Suit for eviction and for arrears of rents - interim application for deposit of arrears of rents - before filing written statement ,basing on notices and exchange of notice - court allowed the same - when there is dispute about the arrears of rents - quantum of rent and before filing the written statement - as per sub rule 2 no petition be allowed and as such set aside the order and reopened the I.A.for fresh disposal - 2015 Telangana & A.P. msklawreports

The plaintiff / respondent herein filed the suit for eviction of the defendant petitioner from the suit scheduled property and for delivering the vacant position thereof to her.  The plaintiff also prayed for a sum of Rs.54,41,874/- to be paid towards arrears of rent together with the interest at the rate of 12% per annum from the date of the suit till the same is realized and also sought for future mesne profits.  The plaintiff has also filed I.A.No.315 of 2014 for a direction to the respondent to pay her an amount of Rs.52,79,713/- being the arrears of rent payable.  This I.A.No.315 of 2014 is moved in terms of and in accordance with Order-XV-A read with Section 151 of the Code of Civil Procedure (for short the Code).  That application is, now, ordered on 16-04-2015.   = Rule (1) clearly spelt out that the defendant, while filing his written statement, shall deposit the amount representing the undisputed arrears calculated up to that date into the Court and shall

Sec.340 and 195 Cr.P.C. - application by Accused who convicted under Sec.376 & 506 I.P.C. - Acquitted under sec.201 I.P.C. - for prosecuting the prosecution agency - Sessions court dismissed the application - their lordship held that different statements at different stages of the case made by the public prosecutor would amount to any offence attracting the provision of Section 340 CrPC and By no stretch of imagination, can we say that the stand of a counsel, howsoever inconsistent it may be at different stages of the proceedings, can amount to offences adverted to under Section 195 CrPC. and like wise mere contradiction in evidence can amount to offences adverted to under sec.195 Cr.P.C. - 2015 Telangana & A.P. msklawreports

The petitioner has been charge sheeted for offences under Section 376, 506 and 201 IPC and after a full fledged trial he has been convicted for the offences under Sections 376 and 506 IPC, but was acquitted of the offence under Section 201 IPC, by the Sessions Court. Pending Appeal against the Conviction - The above said accused filed an application  under sec.340 & 195 of Cr.P.C for prosecution of prosecuting agencies for the contradictions in the deposition run over. 1)      Take cognizance of this matter, conduct inquiries as required, give specific finding and register a criminal complaint with the appropriate investigating agency against the prospective accused as detailed in this application and deal with the matter as per law enshrined in Section 340 and 195 of the Cr.P.C. in the interest of justice. 2)      Call for the relevant General Diary, Case Diary and other records from CCS as this Honble Court deems necessary to corroborate the culpability of

Whether an interlocutory application is maintainable for permission of GPA to represent and depose on behalf of one of the party before the family court and any advocate of the choice of party to make available the skype facility for the court to interact with the party as he is in abroad - their lordships hled that Family Court to entertain the I.A. as it is maintainable and permit the GPA of the 2nd petitioner in O.P. to represent and depose on behalf of the 2nd petitioner in the O.P. and the Family Court shall also direct such GPA or any legal practitioner chosen by him to make available the skype facility for the Court to interact with the 2nd petitioner, who is staying at Melbourne, Australia and record the consent of 2nd petitioner and proceed with the matter thereafter as expeditiously as is possible.-2015 Telangana & A. P.msklawreports

The petitioner herein is the husband and the respondent is his wife.  Both of them have filed the aforesaid O.P.No.1547 of 2014 under Section 13-B of Hindu Marriage Act, 1955, for dissolution of their marriage performed on 22.08.2010 by a decree of divorce by mutual consent.  The 1st petitioner in the O.P., who is the respondent herein, has been attending to the proceedings by appearing before the Family Court.  However, the father of the 2nd petitioner, who holds the General Power of Attorney (GPA) of the 2nd petitioner/husband in the O.P., filed an interlocutory application bearing SR.No.2216 of 2015 on 09.04.2015 before the Family court to receive the chief affidavit of PW.2/petitioner No.2, duly dispensing with the personal appearance of the 2nd petitioner before the Family Court.   The 2nd petitioner has sworn to a detailed affidavit and got it notarized by a notary public of South Melbourne, Australia.   That interlocutory application has been returned with

Refund of EMD Rs.50,000/- for rejecting his incomplete Tender who failed to mention monthly rent in application - Respondent forfeited the same - writ - their lordships held that forfeiture of EMD merely on the ground that the tender is incomplete is highly irrational. Such an action causes double disadvantage to the tenderer namely, rejection of the tender as well as the forfeiture of the EMD. - the impugned clause has no nexus to the object sought to be achieved and the same constitutes patent arbitrariness. A Statutory Corporation, such as respondent No.1, cannot resort to unjust enrichment by stipulating such clauses.-respondents are directed to refund the sum of Rs.50,000/- to thepetitioner - 2015 Telangana & A.P. 2015MSKLAWREPORT

   As the petitioner failed to mention the monthly rent against column No.4 of the tender form, his tender was not only rejected treating the same as invalid, but also the sum of Rs.50,000/- paid as EMD was forfeited by respondent No.2.  Aggrieved by the said forfeiture, the petitioner has filed W.P. The purpose of an EMD is to make the tenderer bound by the tender conditions and in the event of violation of the tender conditions the Corporation will recover the loss, if any, caused by such tenderer for his violation through forfeiture of EMD. The inevitable consequence of an incomplete tender is its rejection.  In my opinion, forfeiture of EMD merely on the ground that the tender is incomplete is highly irrational.  Such an action causes double disadvantage to the tenderer namely, rejection of the tender as well as the forfeiture of the EMD.   The respondents have not explained the rationale behind stipulating condition No.4(d).  It is not the pleaded case of the

Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose of this Section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports

"(i) Whether  Section 6  of the Hindu Succession Act, 1956, as amended by the Amendment Act , 2005 is prospective or retrospective in operation? (ii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born prior to 17.6.1956? (iii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"   In addressing an argument that the Explanation to  Section 6  clearly provides that partition means any partition made by execution of a deed duly registered under the  Registration Act , 1908 or a partition effected by a decree of a Court a

Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short “the SICA). - Application for protection of sec.22 (1) of SICA by Guarantors - whether maintainable - Settled law - if the action filed by the Bank comes with in the ambit of term suit, he can obtain protection - if the action of Bank is in the nature of proceedings , he can not avail the protection - in this case , he filed application in proceedings , High court rightly dismissed the application =2015 S.C.(2013) MSKLAWREPORTS

  whether  the appellants who are Directors and  Guarantors  of  a  sick  company  and  are entitled to get the protection of  Section  22(1)  of  the  Sick  Industrial Companies (Special Provisions) Act, 1985 (for short “the SICA). = Appellants, who are the guarantors, can obtain  the  protection  of  Section  22(1) of SICA only if the action filed by the bank comes  within  the  ambit  of the term ‘suit’.  If the action filed  by  the  respondent  bank  in  the  nature of ‘proceedings’ and not a ‘suit’,  protection  under  Section  22(1)  would not be available, especially, when the appellants are guarantors. =    This Court, in KSL and Industries Limited (supra)  took the  view  that even though both the conflicting statutes SICA and Recovery of Debts Due  to Banks and Financial Institutions Act, 1993 (for short the “RDDB”) contain  a non-obstante clause, in case of conflict the RDDB  Act,  1993  will  prevail over SICA, so far as public revenue recoveries

The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated.”. 4. In the principal Act, after section 142, the following section shall be inserted, ‘‘142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.

1 THE NEGOTIABLE INSTRUMENTS (AMENDMENT) BILL, 2015 A BILL further to amend the Negotiable Instruments Act, 1881. BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:— 1. (1) This Act may be called the Negotiable Instruments (Amendment) Act, 2015. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. 2. In the Negotiable Instruments Act,1881 (hereinafter referred to as the principal Act), in section 6,— Short title and commencement. 26 of 1881. Amendment of section 6. Bill No. 151 of 2015 5 AS INTRODUCED IN LOK SABHA 2 (i) in the Explanation I, for clause (a), the following clause shall be substituted, namely:— ‘(a) ‘‘a cheque in the electronic form”

Suit for Declaration of title and injunction for Exclusive Rastha - Earlier suit for injunction - in which it was found that it is a Common Passage - Whether operates as Resjudicata -Their Lordships held that in the absence of pleadings that the common passage was converted into absolute rastha and his mother gifted the same - the finding in earlier suit operates as Resjudicata - Whether the Status quo orders granted in Common Passage operates as breach of injunction when a bunk was removed from the passage - since it is a common passage , the question of breach of status quo orders did not arise- 2015 Telangana & A.P. msklawreports

Law :- Sec.11, Or. 39, rule 2 A C.P.C. Sub :- Resjudicata ;  Contempt of Court ; Summary  :- A memorandum of understanding dated 30-4-2002 was     executed between plaintiff and his mother where under plaintiff is provided passage from his property bearing Door No.7-1-153 to western side of the road.  Plaintiff has complied with the conditions mentioned in Memorandum and on that, mother   executed registered gift deed on 5-5-2001 gifting schedule property and as such, plaintiff has become absolute owner.           Defendant resisted the claim of plaintiff on the ground that claim is barred by resjudicata as in the earlier suit filed by plaintiff in O.S.No.6 of 1994, a clear finding was given that the suit property was joint passage and that finding would bind both the parties and therefore, the claim is barred by resjudicata.  It is also contended that the mother of plaintiff has no right to gift the common passage and there is no separate municipal number for  

Quash the PRC proceedings - yet to be committed by committal Magistrate - no grounds to quash the proceedings - after committal , the petitioner can file a petition under sec.227 or made an oral application for discharge under Sec.226-228 Cr.P.C. before the Sessions court - Hence dismissed the petition - 2015 Telgana & A.P. msklawreports

Quash the PRC proceedings - yet to be committed by committal Magistrate - no grounds to quash the proceedings - after committal , the petitioner can file a petition under sec.227 or made an oral application for discharge under Sec.226-228 Cr.P.C. before the Sessions court - Hence dismissed the petition - 2015 Telgana & A.P. msklawreports

Consumer affairs, food & civil supplies - Bifurcation of fair shop in between two villages - Their lordships held that by itself would not offer justification for the respondents to bifurcate the petitioners fair price shop leaving it completely unviable. If the respondents feel that the essential commodities need to be distributed in the two Villages of Vaddepalli and Kondugaripalle, they can direct the petitioner to arrange such distribution in those Villages on particular days by paying transportation expenses to her.- Writ allowed - 2015 Telangana & A.P. msklawreports

Law : - Writ Proceedings Sub : - bifurcation of her shop is that it is patently in contravention of the norms contained in G.O.Ms.No.35, Consumer Affairs, Food & Civil Supplies (CS-1) Department, dated 17.09.2007. Summary :- G.O.Ms.No.35, Consumer Affairs, Food & Civil Supplies (CS-1) Department, dated 17.09.2007. The petitioner relied upon Clause-6(v) of the said G.O., which reads as under: Rural areas: Each Gram Panchayat (v) should have atleast one F.P. shop with a minimum of 400 BPL cards and 50 APL cards. In case, there are more number of cards in excess of the minimum number of cards i.e., 400 BPL and 50 APL in a village there can be two F.P. shops, provided the total number of BPL cards in that village is not less than 600 and the number of BPL and APL cards should be attached to the two Fair Price Shops equally. Held that  :- (a)     Rural areas: The number of the Iris based ration cards to be attached to each fair price shop is 400 to 450 BPL an

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports

Law  :- Sec.482 of Cr.P.C. Sub  :- Quash the criminal proceedings Offence  :-Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 Summary : -  The investigation revealed that clandestinely question paper Part-B has been removed from the exam hall and it was passed on to Accused No.1 for eventually facilitating in malpractice. However, the police after investigation, filed the charge-sheet.   The petitioner (A-2) along with A-1 is sought to be proceeded against under Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 (Act for short).     Section 5 of the Act reads as under: Prevention of leakage by person entrusted with examination works: No person who is entrusted with any work pertaining to a public examination shall, except where he is permitted by virtue of his duties so to do, directly or indirectly divulge or cause to be divulged or make known to any o

Partition Suit - Posted for Judgment - suit filed in the year 2006 - Plaintiff took several adjournments with out getting ready for submitting arguments - Petition to implead some persons at the stage of argument was dismissed - arguments submitted - when the matter was posted for judgment - third party - sons of exparte defendant filed an application in the year 2014 for impleadment - opposed by Def.No.9 a bonafide purchaser of suit schedule property but not by plaintiff and by other defendants - Trial court dismissed - Their Lordships held that since there was no explanation how they come about suit proceedings after the lapse of several years - lacks bonafides and as such the trial court rightly dismissed the same. - 2015 Telangana & A.P.msklawreports

LAW  : - Or.1, Rule 10 C.P.C. SUB  :- Impleading Petition.  I.A.No.1067 of 2014 moved in O.S.No.1546 of 2006 seeking impleadment as Defendant No.22    to the suit.=  has not been opposed by the plaintiffs, nor the other defendants did oppose that except D 9.  the trial court dismissed the petition  Held : -   The suit, as it is, was instituted in the year 2006.   It appears that the matter was coming up for Judgment, literally.   When the case was posted for final arguments, it appears that the plaintiffs have taken several adjournments and submitted their arguments at long last.  When the matter was posted for Judgment, the plaintiffs have filed an interlocutory application for impleading some other third-parties as parties to the suit.  That Application was also dismissed by the Court.   Thereafter, the present application in I.A.No.1067 of 2014 is filed.   It is, therefore, contended by defendant 9 that there are no bona fides behind the said Application and it

When the property in the hands of a sole coparcener allotted to him in partition revives as coparcenary Property ?

When the property in the hands of a sole coparcener allotted to him in partition revives as coparcenary Property ? Whether  the  plaintiff  is  entitled  to   a   decree   for                declaration  to  the  effect  that  impugned  release   deed                dt.28.5.2004 and mutation no.3365 entered  and  attested  in                lieu of impugned release deed and  further  two  sale  deeds                dt.19.5.2000 bearing no.272/1 and 273/1 and mutation no.3110                and 3106 entered and attested on the basis of  impugned  two                sale deeds and further revenue entries  are  wrong,  illegal                and  not  binding  on  the  rights  of  the  plaintiff   and                defendants no. 6     & 7?”      “ It is now well settled in view of several decisions of this            Court that the property  in  the  hands  of  a  sole  coparcener            allotted to him in partition shall be his separate property  

a memorandum regarding past partition is also brought within the definition of 'instrument of partition' by A.P. (Amendment) Act 17 of 1986 w.e.f. 16-08-1986. By virtue of the said amendment, a memorandum regarding past partition also amounts to instrument of partition requiring same duty as a bottomry bond for the amount or the market value of the separated share or shares. Even assuming that the disputed document is only a memorandum of past partition, still it is required to be drafted on stamp paper as per the market value of the share. The disputed document is, therefore, insufficiently stamped. "An unregistered partition deed is admissible in evidence and can be looked into for non-suiting the claims for partition on the ground of prior partition, as long as the said document is not used as the source of title to any of the properties which erstwhile coparceners hold as a result of that partition." The above proposition is not disputed. In the above case also it is observed that the document is admissible in evidence as long as it is not used as source of title. In the present case, which is not a suit for partition but is a suit filed for declaration on the ground that the plaintiffs are the absolute owners of the property, the defendants sought to produce the disputed document to non-suit the plaintiffs and to prove their contention that they are the absolute owners of the property, as they got the same in a family partition.?

a memorandum regarding past partition is also brought within the definition of 'instrument of partition' by A.P. (Amendment) Act 17 of 1986 w.e.f. 16-08-1986. By virtue of the said amendment, a memorandum regarding past partition also amounts to instrument of partition requiring same duty as a bottomry bond for the amount or the market value of the separated share or shares. Even assuming that the disputed document is only a memorandum of past partition, still it is required to be drafted on stamp paper as per the market value of the share. The disputed document is, therefore, insufficiently stamped. "An unregistered partition deed is admissible in evidence and can be looked into for non-suiting the claims for partition on the ground of prior partition, as long as the said document is not used as the source of title to any of the properties which erstwhile coparceners hold as a result of that partition." The above proposition is not disputed. In the above ca