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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.
Whether or not the appel…

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 continue to
deposi…

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
the IO as has been discussed in this pet…

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 a cryptic order dated 09.04.2015,
which…

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 respondents that by rejection of the p…

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 theAmendment Act, 2005 is prospective or retrospective in operation?(ii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by theAmendment Act, 2005 applies to daughters born prior to 17.6.1956?(iii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by theAmendment 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 theAmendment 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 and therefore, if an oral partition had t…

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 are  concerned.  This  Court also emphasized t…

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  
this common passage and it is not the prop…

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 and 50 pink cards.

     No …

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 other person
any information 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 is only intended to protract and prolong the…

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  for            the same shall revive only when…

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.?