MSK Publications -MSK Law Reports 2015 – Ready Reckoner

Wish you all a happy and prosperous New Year.  God bless you all with great health, wealth and prosperity .                                                                                                                   with regards                                                                                                                             yours                                                                                                                          advocatemmmohan

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.

 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 t

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,

 prior sanction under Section 19 of the PC Act and 197 of CrPC that are respectively lacking, the proceedings are unsustainable and are liable to be quashed, petitions are allowed by quashing the impugned cognizance orders for the following: (a). the trial judge has no power to review the previous dismissal or closed order in view of specific bar under Section 362 CrPC and thereby the order of the learned Special Judge on 28.12.2015 in suo-motto reopening the matter, for not a mere correction of any clerical or arithmetical or typographic mistake so to do even if at all only on an application, for it has no inherent powers saved under Section 482 CrPC as held by the Division Bench of this court in a maintenance case restored of dismissed in C. Subrahmanyam Vs. C. Sumathi and in a case of process issued under Section 204 CrPC was recalled in the expression of the Apex Court in Adalat Prasad Vs. Rooplal Jinfdal , for not having the powers of High Court either under Section 482 CrPC

 The offences alleged in the instant case are under Sec.323, 506 IPC and Sec.3(1)(x) of SC, ST (POA) Act, 1989. All the aforesaid offences are punishable with a term less than 7 years. Therefore, the procedure contemplated under Sec.41 and 41-A Cr.P.C, squarely apply to them and those Sections have not made any express distinction between the offences punishable under IPC and other Special enactments. Therefore, the contra view expressed by learned Addl. Junior Civil Judge, is incorrect. The explanation of the SDPO Madanapalle dated 13.04.2017 shows that since the offence was punishable below 7 years of imprisonment and as the accused had not failed to comply with the terms of notice under Sec.41-A Cr.P.C, the I.O did not consider it necessary to arrest the accused. Therefore, the I.O granted station bail by securing the bail bonds of the sureties on behalf of the accused. This procedural order under Sec.41-A Cr.P.C cannot be equated with an order passed by a Court under Sec.438