MSK Publications -MSK Law Reports 2015 – Ready Reckoner

  Wishing you all a happy & prosperous  Plava nama UGADI new year  God bless you all with great health & wealth & prosperity                                      with regards                                         advocatemmmohan

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

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. Wi...

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 e...

 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 ...

 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....

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.

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 d...

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 utm...

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,  unmind...

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  cancellatio...

WHO IS AN AGGRIEVED PERSON UNDER SEC.68 OF INSOLVENCY ACT 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, bot...

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 docum...

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 ...

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 ...