Showing posts from 2017


Apex court has held that by way of amendment, admission made in pleadings and particularly in the plaint cannot be sought to be omitted or got rid of. The Court further observed that a prayer for amendment of the plaint stand on different footing. The relevant observations of the Court are set out as under: "19. ..a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

2017 A.P. DIGEST - 8


1.  Whether Section 90 of the Evidence Act, 1872, is applicable to
the proof of a Will and the failure to apply the same by the Courts below
is a perverse and unsustainable conclusion even concurrently and same
is devoid of merits and even if so, for not specifically raised in the Courts
below, whether open to raise and to consider in the second appeal?

     2.  Whether it is the wording of Section 63 of the Indian Succession
Act, 1925 that is required to be reproduced by a witness in proof of a Will
i.e., one of the attestors required to be examined or it is to be construed of
the twin requirements from a reading of the evidence as a whole in
appreciation with facts and law and, if so, the conclusions arrived by the
Courts below of the Will is not proved by satisfying the twin requirements
of Section 63 of the Act are perverse and unsustainable?

     3.  Whether the Will is shrouded with suspicious circumstances
even same either under Section 90 of the Evidence Act, if at all to apply,
and even ot…


2017 - AP HIGH COURT DIGEST - JUNE 5 Whether the investigating officer can grant station bail to accused while dealing with him under Sec.41-A Cr.P.C when the offence is a special Act offence under ST & SC Act?- yes-

2017- A.P. DIGEST - JUNE 4

five accused were acquitted of the
charge under Section 302 read with 34 IPC. -
Moreover the viscera contain mercury metallic
poison along with Ethyl alcohol.  According to
P.W.10, mercury is a corrosive substance and it
caused damage to the lips, mouth, throat and
oesonghages.  But, there is no corrosive
appearance on the lips, mouth and throat of the
deceased to fix up the liability against the
accused that they poured manocrotopas mercury  
metallic poison in the mouth of deceased and
killed her.
On a careful appreciation of the entire oral and
documentary evidence on record and the reasons assigned by  
the trial Court, we are of the opinion that the prosecution has
miserably failed to prove the guilt of the accused beyond all
reasonable doubt and that the trial Court has rightly
acquitted all the accused of the charge framed against them.

2017- A.P. DIGEST - JUNE3

Order XXVI Rule 10
of the Code of Civil Procedure  for sending expert opinion at fag end of the arguments- delay - dismissed  = suit for specific performance of an agreement of sale - Ex.A.1, in the year 2010. -  filed a written
statement wherein they have denied the execution of the agreement of
sale by disputing the signatures.- I.A. under Order XXVI Rule 10
of the Code of Civil Procedure, 1908 to send Ex.A.1 and the written
statement in original to an handwriting expert for comparison of the
admitted signatures with the disputed signatures on Ex.A.1. - This
application was dismissed by the lower Court on the sole ground of
inordinate delay in filing the application and especially at the stage of
arguments.  - 
their lordships held that   I am unable to agree with the submission of the learned
counsel for the petitioner that cause of action for his client to file the
application for sending the suit document for experts opinion arose only
on closure of the defendants evidence.  With the denial o…

2017 - A.P.DIGEST - JUNE 2

Or.39, rule 1 and 2 C.P.C. - granting interim injunction against sub registrar who is not a party to the suit - No interim injunction exparte can be granted against third party to the suit-
Even in Shyamali Das v. Illa Chowdary and Others
(6th supra), the Apex Court made it clear that the injunction cannot
be granted against the person who is not a party to the proceedings,
but the Tribunal observed that in the utmost necessity the court can
grant an interim order even before impleading the person against
whom the interim order is sought for.   It is not the law declared by
the Apex court, but it is an observation made by the Tribunal.  Even
otherwise, it is for the court to record reasons that there is an utmost
necessity to grant an interim injunction, before impleading a person
against whom the interim order was sought for. But here the order is
bereft of any reasons to conclude that there is utmost necessity.  Even
the order is silent that in view of utmost necessity the interim orde…

2017 A.P. Digest - June part

2017 A.P. Digest - June part-1
suit for specific performance - sale agreement is a fabricated one - The Court
below took the aid of a magnifying glass to look at the dates, to understand that the sale agreement was brought into existence and is not a genuine one. But even to the naked eye the said dubiety would be evident. The sale agreement, as rightly observed by the Court below, is dated 23.05.1987 whereas the stamp paper was purchased on 27.05.1987. The said inconsistency is insuperable.P.W.1 asserts that the stamp paper was purchased on the date of 
agreement itself,which is 23rd, whereas the stamp paper bears a glaring date of 27th.-the evidence of the attestors and any one testifying to have been a witness to such agreement, like P.W.6 also would only be nothing but untrustworthy.-no other understanding except that the sale agreement was brought into existence by all concerned, unmindful of the said possible discrepancy.-From the fact that the plaintiff fabricated the sale agreeme…


DEFAMATION -sufficient if one sanction is accorded to prosecute all the concerned persons involved in that occurrence,= By careful reading of Section 199(4) of the Cr.P.C., it does not indicate that in order to initiate criminal proceedings against the accused, the public servant needs to obtain sanction from the State Government in respect of each one of the persons against whom the same transaction of offence is alleged and the names of the accused are required to be mentioned specifically in the sanction order accorded by the State Government. It is sufficient if one sanction is accorded to prosecute all the concerned persons involved in that occurrence, thus, the contention on behalf of the appellants in this regard is also liable to be rejected and is accordingly rejected.


It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a Judge in his judicial capacity or even to make a proper and fair comment on any decision given by him. But, if an article attributes improper motives to the Judge, it not only transgresses the limits of fair and bona fide criticism but has a clear tendency to affect the dignity and prestige of the court and would amount to contempt of court.


whether Civil Court lacks the jurisdiction to entertain the suit filed by the respondent herein or the subject matter of the suit lies within the exclusive jurisdiction of the Tribunal constituted under the Rajasthan Wakf Act, 1995 (hereinafter to be referred as the ‘Act’), having regard to the provisions of Section 85 of the Act ? = Apex court held that since the suit was filed much before the Act came into force, going by the dicta laid down in Sardar Khan case, it is the civil court where the suit was filed will continue to have the jurisdiction over the issue and civil court would be competent to decide the same.


whether Section 107 WAKF Act , can revive an extinguished right. We may note that the authority relied upon by the learned counsel for the appellant reported in Yeshwantrao Laxmanrao Ghatge and Another (supra) cannot be ignored. That decision was not a case of repeal and accordingly, there was no reference to Section 6 at all in that Act. Nevertheless, it was held in that case that a right extinguished under Section 28 of the Limitation Act, 1963 cannot be revived by Section 52A. Similarly, in the present case, we are of the opinion that applicability of Section 6 is inconsequential because admittedly, there was an extinguishment of rights under Section 28 and Section 107 cannot revive those extinguished rights.


T.P.Act - Registered sale deed coupled with an agreement of re conveyance - for a transaction to constitute mortgage by conditional sale, it is necessary that the condition is embodied in the document that purports to effect the sale. But not when  Sale Deed dated 14.06.1972 and  Agreement of re conveyance dated 14.06.1972 having been executed on the same day and both ought to be read together and when the Sale Deed was executed only as a security for the loan and it was never the intention of the 1st respondent-plaintiff to convey the suit property. Since 1st respondent- plaintiff has paid back the loan amount i.e. Rs.6,700/- as is evident from the subsequent Agreement dated 05.06.1974, the Courts below rightly recorded the concurrent findings of fact that  Sale Deed is not binding on the 1st respondent-plaintiff. Once repayment was made, the 1st respondent-plaintiff was entitled to the declaration as prayed for no need to ask for  cancellation of sale deed.


The petitioner herein was a lessee of the property which was sold by the Official Receiver. The petitioner filed the above I.A. No. 49 of 1966 on the file of the Sub-Court, Ootacamund, on the ground that the sale conducted by the Official Receiver was vitiated for two reasons (1) that the sale was conducted without notice to him as lessee in possession of the property sold and (2) that there was no sufficient publication so as to attract the highest bid. The ?Courts below have taken the view that the petitioner herein is not an aggrieved person so as to entitle him to file an application under Section 68 of the Provincial Insolvency Act for setting aside the sale conducted by the Official Receiver of the insolvent's property that as a lessee he is not entitled to any notice of sale and that as such the petition filed by the petitioner for setting aside the sale was not maintainable. In that view, both the Courts have not gon…

APEX COURT DIGEST - Jan.2017 [9],

Sections 406, 409 read with Section 120(B) of IPC-for quashing of FIR on the ground that it is purely civil in nature -entered  into a conspiracy, pursuant to which fabricated documents  were  created  and  in land acquisition proceedings concerning land bearing City Survey No.  20722, situated within the limits of Aurangabad Corporation,  compensation  to  the tune of Rs.23.48 lacs was received by the appellant without there being  any entitlement. - HELD THAT - We have gone through the record and considered rival submissions.  The  High Court found three infirmities namely  that  Onkargiri,  predecessor  of the plaintiffs in Regular Civil Suit No.81 of 1993 did not have any title;  that no sale deed was  executed  by  the  plaintiffs  in  favour  of  said  three persons; and that the document of lease  stated  to  be  in  favour  of  the appellant  did  not  mention  any  rent  at  all.  In  the  face  of   these observations it cannot be said that the dispute in question  was  pure…

APEX COURT DIGEST - Jan.2017 [8]

Sections 148, 302 read with  Section  149  and
201 of the Indian Penal Code,1860 (for short ‘IPC’).- where  the  Trial  Court  and  the  High  Court,  on appreciating the  entire  oral  evidence,  recorded  categorical  concurrent
findings of fact against the appellants (accused) about their complicity  in
commission of crime in question which resulted in killing of mother and  her
unmarried daughter.- HELD THAT - This Court, being the last  Court  of  appeal,  does
not re-visit and re-appreciate the entire  oral  evidence  de  novo  in  its
jurisdiction under Article 136 of the Constitution unless there  are  strong
and prima facie reasons to do so pointing out  therein  any  apparent  legal
and jurisdictional error prejudicing any rights of the accused.;

Sections 148, 302 read with  Section  149  and 201 of the Indian Penal Code,1860 (for short ‘IPC’).- whether  bones recovered were human or animal bones,-In our considered opinion,  the  disclosure  statements  made  by  the accused during t…

APEX COURT DIGEST - Jan.2017 [7]

Motor Accidents Claim - Tribunal conducted trial but return the claim petition to present in proper Tribunal feeling that it has no jurisdiction - The appellants filed review  petition  against  that
order which was also dismissed vide orders dated 10.04.2013.- Challenging this order,  the  appellants  filed  petition  under Article 227 of the Constitution in the High  Court  of  Calcutta  which  has
been dismissed by the High Court on the ground of delays and laches  stating that though MACT had dismissed the review petition of  the  appellants  vide orders dated 10.04.2013, revisional application challenging that  order  was filed only on 03.03.2015 after a delay of almost 2 years. - Apex court held that It is  an  admitted  position  in  law  that  no  limitation  is prescribed for filing application under Article  227  of  the  Constitution - but  supposed to file  the same without unreasonable delay and if there is a delay that should be  duly and satisfactorily explained. - but  t…

APEX COURT DIGEST - Jan.2017 [6]

Delhi Rent control Act sec.14 - Rent Control Case - Eviction Petition - The landlord sought the eviction of the tenant  on  the  ground  that the tenant had sub-let the premises to his son-in-law  in  contravention  of
Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred  to  as‘the Act’). - whether  he was doing business along with his father-in-law or independent of him,  i.e.
whether  he  was  doing  business  exclusively  behind  the  façade   of   a partnership or as a genuine partner.  It is an  uncontroverted  fact  before us that the landlord’s permission in writing was  not  obtained  before  the tenant had allowed the alleged sub-tenant to occupy the shop - the Rent Controller clearly found that the son-in-law had been put  in possession of the shop in pursuance of a sham partnership deed and  was  not merely assisting in the shop as a son-in-law.- The High  Court held that the respondent-tenant, Hakim Rai had not sub-let the  premises  to his  son-in-law,  Raj…

APEX COURT DIGEST - Jan.2017 [5]

Election petition -  The  appellant  lost  election  from  Bhattiyat  Assembly  Constituency   of Himachal Pradesh Legislative Assembly held  in  2012  by  a  margin  of  111votes. He filed an election petition mainly on  the  grounds  under  Section 100(1)(d)(iii) of the Act -  Exercise of dual right of franchise by a voter and discrepancy between  the EVM record and the record maintained in Form 17-A at polling station  No.92-Kamla; - Improper reception of 30 postal ballot papers; and Discrepancy regarding 100 postal ballot papers-whether 597 or 697?” - issues framed - “2)   Whether the election petition is liable to be dismissed in limine  for lack of material facts and particulars, as alleged? 3)    Whether the election petition is not  maintainable  for  want  of  any cause of action, as alleged?” - High Court dismissed election petition on  preliminary issues under Or.14, rule 2 of C.P.C. - Apex court held that  High court committed a  grave error by considering the explanations…

Apex court digest - Jan.2017 [4],

Or.39, rule 1 and 2 C.P.C. - suit for injunction - interim application for interim injunction - Trial court rejected - High court granted - Apex court set aside the High court and restore the trial court order-  The Plaintiff along with his Maternal grand-mother  are in use, occupation and possession of the  premises-The Defendant Nos.1, 2, 3 and 5 are the Paternal uncles  of  the Plaintiff’s mother -Defendant No.6,  is a son of the Defendant No.5 and Defendant No.4 is the sister  of  Defendants1,2,3 and 5 -Mohammed Ali H. Tejani (called the said Deceased)  was  a  Co-owner along with Defendant Nos.1 to 5 in respect of a Plot of  Land  bearing Plot No.202-D, along with the building comprising of ground with  one  upper floor-The said deceased  executed a Will dated 28th September 1991 under which  the  deceased  bequeathed  his 1/7th share in the plot of land in favour of the Defendant Nos.1 to  5.  The said Will is probated in the High Court - the maternal grand-mother of the respond…

Apex court digest - Jan.2017 [3],

the  Award passed by the Labour Court and confirmed by  the  High  Court,  wherein  the
workman was directed to be reinstated with 50% backwages.
conferring  benefit  of
doubt, he has been acquitted in  the  case  and,  thereafter,  he  has  been
reinstated.  The appellants, therefore,  contend  that  the  respondent  was
kept out of service only on account  of  his  involvement  in  the  criminal
case, as warranted by the Service Regulations concerned and hence, there  is
no justification in granting him backwages.
Apex court Held that we had  made  it  clear  that  the scope is limited only to the question of backwages. In the above circumstances, the appeal is allowed to the  extent  that the  respondent  will  be  entitled  to  all  service   benefits   including continuity of service, except any backwages.

Apex court digest - Jan.2017 [2],

interpretation  of Section 123(3) of the Representation of the People Act, 1951 to a  Bench  of
seven judges has its origins in three decisions of this Court .= 
scope and  what  constitutes  a  corrupt  practice  under  sub-sections (3) or (3A) of Section 123 of  the  Representation  of  the  People Act, 1951 (for short, ‘the Act’) needs to  be  clearly  and authoritatively laid down to  avoid  a  miscarriage  of  justice  in  interpreting  ‘corrupt practice’=

The provisions of sub-section (3) of Section 123 of  the  Representation  of
the People Act, 1951 are required to be read and appreciated in the  context
of simultaneous and contemporaneous amendments  inserting  sub-section  (3A)
in Section 123 of the Act and inserting Section 153A  in  the  Indian  Penal
So read together, and for maintaining the purity of  the  electoral  process
and not vitiating it, sub-section (3) of Section 123 of  the  Representation
of the People Act, 1951 must be given a broad and  purposive  inter…

Apex court digest - Jan.2017 [1]

suit for declaration and recovery of possession by Plaintiff  - declaration that the  agreement  for  sale  dated  16th  October,  1988  was without any authority given to Jinendra Jain.  She also made  a  prayer  for recovery of possession and grant of mesne profits since  possession  of  the
plot had been given by Jinendra Jain to Makhija. ; 
- as counter blast - 
Suit for specific performance by defendant -  for  specific  performance  of  the  agreement  dated  16th October, 1988 entered into by  him  with  Pushparani  through  her  attorney
Jinendra Jain.- The  original  of  this  document [power of attorney]  has  not  been produced by anybody. - trial court decreed the suit of plaintiff and dismissed the suit of the defendant; 
Pending appeal the defendant field filed  an application before the High Court under Order XLI Rule 27  of  the  Code  of Civil Procedure[1] (for short the CPC) for adducing additional evidence. - sought  to  bring  on   record   an application said to hav…