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    27Nov, 2023
    Specific Relief Act Section 6 Section 115 CPC Temporary Injunction By the impugned judgment, a Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition.

    (REPORTABLE )
    CIVIL APPEAL NO. 1416 OF 2019
    (Arising out of SLP (C) No. 10850/2018)

    DB – HONBLE JUSTICE ROHINTON FALI NARIMAN & VINEET SARAN SUPREME COURT OF INDIA

    • Specific Relief Act Section 6 Section 115 CPC Temporary Injunction By the impugned judgment, a Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed in which dispossession was acquiesced in A reading of this proviso will show that, after 1999, revision petitions filed under section 115 CPC are not maintainable against interlocutory orders The Court sets aside the impugned judgment and restore the judgment of the Courts below Appeal is allowed.

    Relevant Paras:

    5) By the impugned judgment dated 10.04.2018, a
    Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed on 03.02.2013 in which dispossession was acquiesced in.
    learned

    6) We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment. First and foremost, the 1999 amendment to the CPC added a proviso Section 115 which reads as follows:
    “115. Revision-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
    (a) to have exercised a jurisdiction not vested in it by law, or
    (b) to have failed to exercise a jurisdiction so vested, or
    (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
    the High Court may make such order in the case as it thinks fit:
    Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

    (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
    A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.
    7) Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi vs. Sarup Singh and Others(1970) 2 SCR 368 this Court held:

    “The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the
    revision virtually as if it was an appeal.” at Pg.373.
    8) Learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Wardenvs. Coomi Sorab Warden and Others (1990) 2 SCC 117. Para 16 of this judgment is set out hereinbelow:
    “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:-
    (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
    (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
    (3) The balance of convenience is in favour of the one seeking such relief.”
    This judgment also makes it clear that when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment.

    9) We, therefore, set aside the impugned judgment and restore the judgment of the Courts below.
    10) Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial Court should endeavour to dispose of the Suit itself within a period of six months from today.

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    TEK SINGH VERSUS SHASHI VERMA AND ANR. Judgement_04-Feb-2019

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    22Nov, 2023
    Land Acquisition proceedings:acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013


    + W.P.(C) 407/2012, C.M. APPL.25579/2015 & 25580/2015 M/S. GREY SHAM AND CO. AND ANR. …..  versus UOI AND ORS.

    + W.P.(C) 4432/2015, C.M. APPL.8048/2015
    SALONI MEHROTRA AND ANR. …. versus GNCTD AND ORS. …..

    CORAM:
    HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE S.P. GARG
    03/07/17  [ DELHI HIGH COURT ]

    Land Acquisition proceedings – The relief claimed in W.P.(C) is that since the property was not taken possession of by the respondents, the acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – The Court notices that the LAC whose primary responsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were builtup and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land – The documents relied upon, i.e. proceedings rule out the inference that mere symbolic possession is taken.

    The respondents – GNCTD in their counter affidavit rely principally upon the proceedings of possession dated 22.12.1972. It is urged here that notwithstanding the nature of the pleading which seem to suggest that mere symbolic possession was taken, the fact remains on record that physical possession of the lands was taken and witnessed by both Govind Singh, and Man Singh, the father of Mohan Singh and Govind Singh, as well as one of the petitioners. These too were partners of Greysham and Company which is the first petitioner in the W.P.(C) 407/2012. The GNCTD furthermore submits that the position of the first petitioner in W.P.(C) 407/2012 in respect of said concerned land is also that it was in effect a licensee of the MCD and admitted as such in response to the notice by the MCD, involving deposit of arrears of damages for unauthorized occupation of a portion of the suit property. It is submitted that in this light, the submission of the petitioners that they have been in the continuous possession of the suit lands and that they were never displaced bears out from the record.
    9. It is evident from the above narrative that the first petition seeks a direction for denotification and the second proceeds on the footing that the land acquisition proceedings have lapsed. So far as the first claim in the first proceeding is concerned, the GNCTD relies upon the detailed minutes of the denotification committee meeting of 25.02.2010. A look at that document will show that Greysham and Company’s application in respect of the suit property too was considered. The Committee decided not to recommend denotification because the officers of the MCD, “contended that this piece of land is required for establishment of a primary school which will be a feederschool for the existing sr. secondary school in the area.” The petitioners’ endeavor was to submit that there was already an existing school and that it was entitled to alternative land in lieu of acquired land and that consequently, a direction for denotification under Section 48 has to be made. It is consequently urged to acknowledge the claim in W.P.(C) 4432/2015 that in fact actual possession was never taken because if that were the case, the application under Section 48 would not have been maintainable.
    10. As far as the claim for denotification is concerned, the Court notices that there is no authority in law to suggest that a citizen who has received compensation and whose lands have been notified for acquisition had a vested right to claim denotification. Whether to leave from acquisition or not is a matter which lies within the exclusive domain of the authority. Sans successful plea of discrimination or utterly arbitrary approach to the request for denotification, the public nature of the process itself would preclude the right to claim denotification. In short, judicial review would be confined to mere considering whether reasons for declining denotification can withstand scrutiny. It would be well to recollect that without establishing illegality, procedural irregularity or lack of bona fides, in the absence of a legal right, an order – statutory or executive, cannot be set aside or characterized as arbitrary. The reasons given by the GNCTD to reject the denotification application cannot be said to be arbitrary, particularly, because the MCD went on to say that the primary school should be established, which would cater as a feeder to the existing senior secondary school in the area.
    11. As far as the petitioners’ submission with respect to allotment of alternative land is concerned, no doubt, there are observations to that effect in law. At the same time, the Court notices that the LAC whose primaryresponsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were built-up and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land. That brings the Court to a discussion on the applicability of Section 24(2) of the new Act. By several judgments, it has been established that by virtue of Section 24(2) where acquisition of land has been notified but the process has not been completed, i.e. in the sense that either possession is not taken or compensation not paid within five years, whether awards are made more than five years prior to coming into force of the new Act or whether either possession is not taken of the suit land or compensation not paid within the said five year period, the acquisition is deemed to have lapsed. Now in the present case, there is no dispute that the award was made on 02.09.1972. As far as possession is concerned, again, the petitioners did not dispute having received compensation in 1972-73. The only question which survives consideration is whether possession was taken or not. Here, the petitioners emphasise upon previous proceedings – in terms of the interim order permitting withdrawal dated 07.01.2010; the initial interim order made in W.P.(C) 407/2012 and the plea of the GNCTD in W.P.(C) 407/2012. It is submitted that cumulatively all these establish that compensation within the meaning of law or at least physical possession was never taken. Muchemphasis or stress is laid upon the expression “symbolic” used in para 4 of the GNCTD’s affidavit in W.P.(C) 407/2012.
    12. The GNCTD counters this argument with the compensation proceedings of 22.12.1972 and the translated copies – the copies of which have been produced in these proceedings. Significantly, this document was not produced or even relied upon in any of the previous writ petitions – W.P.(C) 3876/1990 and W.P.(C) 407/2012. The petitioners too were aware of these proceedings. The document inter alia reads as follows:
    “Possession proceeding in respect of property No.XII/7249 acquired by Award No.28/72-73.
    Today on 22/12/72, M/s. Shri Ram Phal Kanoongo along with Ved Singh patwari reached at site of the property No.XII/7249 admeasuring 10951 sq. yards acquired vide Award No.28-72-73 for possession proceedings. M/s Chaman Lal, Kanoongo and Ram Kawar, Patwari were found present at the site on behalf of Municipal Corporation of Delhi. On behalf of owner M/s Girdhari Lal Karan Singh, Shri Man Singh Karta and on behalf of Greysham Company, Shri Govind Singh, Partner were found present at site. Nobody was present at the site on behalf of occupiers on behalf of occupiers at the time of possession proceedings. After taking measurement of this property and after moving the representative of Municipal Corporation of Delhi Shri Chaman Lal Kanoongo around in and outside the property No.XII/7249 measuring 10951 sq. yards along with sper structure and after taking possession, the proprietary possession was handed over to Sh. Chaman Lal Kanoongo. There are twenty-four (24) trees in this property for which compensation has been assessed by the award. There possession was also handed over to Shri Chaman Lal Kannoongo. This possession proceeding was announced in loud voice by beat of drum by Shri Mohan Lal, the watchman of the property. At the time of possession proceeding no hindrance was faced. One copy of this possession proceedings was handedover to Shri Chaman Lal, Kanoongo, Land and Estate Department of Corporation.
    Sd/-illegible Sd/-Man Singh 22/12 22/12/72
    Sd/-GovindSingh Sd/-Illegible Kgo.LA
    sd/-illegible 22-12-72
    Sd/-illegiblepat(LA) 22-12-72
    Page 10 of 12
    Sd/- illegible
    Kgo.L&E, MCD/22/12/72”
    13. It is immediately evident from a reading of the above document that the possession taken of the property was in absolute terms and not subject to any conditions. Furthermore, late Sh. Man Singh and one of the petitioners, Govind Singh, were parties to these documents and had signed it. As against this, the reliance by the petitioner with respect to the admissions made in the pleadings, in the opinion of the Court, is inconsequential. It is important here to notice that for reasons best known, the GNCTD did not advert to the possession proceedings of 22.12.1972 in the sense that the documents were never part of any of the records in W.P.(C) 3876/1990 and W.P.(C) 407/2012. They have been produced for the first time in answer to W.P.(C) 4432/2015.
    1    4. As to the effect of this documents, the Supreme Court has ruled in DDA v. Sukhbir Singh and Ors. AIR 2016 SC 4275 by falling upon previous judgments in Raghbir Singh Sehrawat v. State of Haryana 2012 (1) SCC 792 and Banda Development Authority v. Moti Lal Agarwal 2011 (5) SCC 394 that there is no fixed criteria or set pattern of acquiring or taking over possession of acquired lands. Quoted with approval, the observations oin    Banda Development Authority (supra) visualizing five situations and at the same time stating that they are not exhaustive, in Sukhbir Singh (supra) itself the Court approved the mode of acquisition, i.e. recording that the officials/authorities of the Government had visited the site and recorded the taking over of possession. Having regard to this position in law, the Court is of the opinion that in the present case too, the documents relied upon, i.e. proceedings dated 22.12.1972 rule out the inference that mere symbolic possession is taken.

    15. For the foregoing reasons, the Court holds that Section 24(2) of the new Act has no application to the circumstances and facts in these writ petitions. W.P.(C) 407/2012 and W.P.(C) 4432/2015 are, therefore, dismissed.

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    M:S. GREY SHAM AND CO. AND ANR. versus UOI AND ORS. + W.P.(C) 4432:2015, C.M. APPL.8048:2015 JUDGMENT THE LAW LITERATES

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    21Nov, 2023
    Order XXI CPC Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it This is a rule of prudence, inasmuch as the debtor

    K.L. Suneja v. Manjeet Kaur Monga

    CA 1401/19 31/01/23

    DOUBLE BENCH CORUM [HON’BLE JUSTICE M.R. SHAH & HONBLE JUSTICE S. RAVINDRA BHAT  ] [ SUPREME COURT ]

    • Order XXI CPC Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation to ensure that the amount payable is placed at the disposal of the person entitled to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker’s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or ‘payment’ is complete.

     

    Relevant Paras:

    30. The rule was explained in another decision of this court, in V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd:9
    “A bare perusal of the aforesaid provisions makes it amply clear that the scope of Order XXI Rule 1 of the Code of Civil Procedure is that the judgment debtor is required to pay the decretal amount in one of the modes specified in Sub-rule (1) thereof. Sub-rule (2) of Rule 1 provides that once payment is made Under Sub-rule (1), it is the duty of the judgment debtor to give notice to the decree-holder through the Court or directly to him by registered post acknowledgement due. Sub-rule (3) of Rule 1 merely indicates that in case money is paid by postal money order or through a bank under Clause (a) or Clause (b) of Sub-rule (1) thereof, certain particulars are required to be accurately incorporated while making such payment. Sub-rules (4) and (5) of Rule 1 states from which date, interest shall cease to run-in case amount is paid under Clause (a) or (c) of Sub-rule (1), interest shall cease to run from the date of service of notice as indicated Under Sub-rule (2); while in case of out of court payment to the decree-holder by way of any of the modes mentioned under Clause (b) of Sub-rule (1), interest shall cease to run from the date of such payment.”
    31. The provisions of Order XXI are applicable to decrees of civil court. However, they embody a sound policy principle, that if the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it. This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation
    19
    9 V. Kala Bharathi & Ors. vs The Oriental Insurance Company Ltd., 2014 (5) SCC 577, dated 1st April 1947.

    20
    to ensure that the amount payable is placed at the disposal of the person entitled
    to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker’s Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or ‘payment’ is complete.
    32. In the present case, the complainant was aware that the Pay Order had been tendered by the developer to her; nevertheless she filed the original Pay Order with her complaint, and did not seek any order from the MRTP Commission at the relevant time. The pleadings in the complaint did not disclose that the Pay Order was filed in the Commission, to enable the developer to respond appropriately. In these circumstances, the developer’s argument that the rule embodied in Order XXI, Rule 4 CPC, is applicable, is merited. The developer cannot be fastened with any legal liability to pay interest on the sum of ₹ 4,53,750/- after 30th April 2005.
    33. This court is also of the opinion that the complainant’s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail. The records nowhere disclose any fault on the part of the developer; on the other hand, the complainant did not take steps to protect her interests. It has been held by this court, in Sailen Krishna Majumdar v Malik Labhu Masih10 that in such cases, even if equities are equal, the court should not intervene:
    10 Sailen Krishna Majumdar vs. Malik Labhu Masih, 1989 (1) SCR 817, dated 21st February 1989.

    “Equity is being claimed by both the parties. Under the circumstances we have no other alternative but to let the loss lie where it falls. As the maxim is, ‘in aequali jure melior est conditio possidentis’. Where the equities are equal, the law should prevail. The respondent’s right to purchase must, therefore, prevail.”
    In the present case too, the complainant cannot claim interest from the developer, who had returned the Pay Order. As discussed, at the time of filing of the complaint, she could have chosen one among the various options to ensure that the amount presented to her was kept in an interest-bearing account, without prejudice to her rights to claim interest later. In these circumstances, no equities can be extended to her aid.
    34. As regards the complainant’s appeal, the contention is that the impugned order is in error, because the Tribunal ought to have directed that the developer ought to have been directed to pay interest on the sum of ₹ 4,53,750/- from 4th October 1993 till the date of its realization i.e., 7th May 2016. This plea is plainly untenable, because the interest payable for the past period was concluded in the previous proceedings. The complainant did not point to any rule or binding legal principle which obliged the developer to pay such interest, or justify the direction in the impugned order, by showing how such liability arose in the facts and circumstances of this case.

     

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    K L Suneja & ots vs DR. (MRS.) MANJEET KAUR MONGA (D) THROUGH HER LR & ANR_Judgement_31-Jan-2023 Supreme Court The Law literates

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    10Nov, 2023
    Child adopted by government servant’s Hindu window, after his death, not ‘family’ under the (CCS Pension) Rules: Supreme Court

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    A case where a child is born to the deceased government servant after his death has to be contrasted with a case where the widow of a government servant adopts a child after his death. The former category of heirs are covered under the definition of family since such a child would be a posthumous child of the deceased government servant. The entitlement of such a posthumous child is wholly distinct from a child being adopted subsequent to the demise of the government servant by the surviving spouse. The reason for the same is not far to see. This is because the deceased government servant would have had no relationship with the adopted child which would have been adopted subsequent to his demise, as opposed to a posthumous child. Therefore, the definition of the word “family” in relation to a 10 government servant means various categories of persons coming within the nomenclature of the word “family” and all persons who would have had a familial relationship with the government servant during his lifetime. Any other interpretation would lead to abuse of the provision in the matter of grant of family pension.

    10Nov, 2023
    Extra fine unwarranted where a Pakistani citizen turned Indian naturalized citizen bought property without giving notice to RBI

    APPELLATE TRIBUNAL SAFEMA, NEW DELHI

    Arjun Das Malhotra

    v.

    Special Director Directorate of Enforcement, Delhi

    MUNISHWAR NATH BHANDARI, CHAIRMAN
    AND V. ANANDARAJAN, MEMBER

    MP-FE-143/DLI/2022 (MISC.)
    FPA-FE-86/DL1/2022

    SEPTEMBER  5, 2023

    FEMA, BANKING & INSURANCE : Where appellant, a citizen of Islamic Republic of Pakistan holding a passport of that country was granted long term visa by Government of India and was subsequently, granted full citizenship as a naturalized citizen, and he purchased immovable property in India without taking any permission from RBI or any other Government body in contravention of regulation 7 of FEM (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 and appellant paid penalty imposed by Adjudicating Authority, levy of further penalty of Rs. 50 thousand was not justified.
    29Oct, 2023
    Order 8 Rule 6A CPC Counter claim A counter claim must be against the plaintiff Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation

    SATYENDER AND ORS. …..APPELLANTS (VERSUS)
    SAROJ AND ORS. ………….,,,,.RESPONDENTS 
     CA 4833/22 17/08/22  [ SUPREME COURT OF INDIA ]

     

    JUSTICE UDAY UMESH LALIT)
    JUSTICE(S. RAVINDRA BHAT)
    JUSTICE (SUDHANSHU DHULIA)

    Order 8 Rule 6A CPC Counter claim A counter claim must be against the plaintiff Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired.

    Relevant Paras 

    7. The matter was taken in second appeal by the plaintiffs. The second appeal of the plaintiffs was partly allowed. Though the High Court in the second appeal upheld the findings of the two Courts on the sub-letting and tenancy and upheld the findings of the lower courts in favour of the defendants as there was no sub- letting of the land, yet in the same breath the High Court has allowed the claim of the plaintiffs on the two plots i.e., 21//3/2 and 7//13 for the reasons that for these two plots though the plaintiffs had raised their claim and the defendants had not raised any counter claim on these plot numbers, which went uncontested.
    8. In addition, it was also held by the High Court that the counter claims set up by the defendant (on plot Nos. 6//18 and 23) could not be decreed since the plaintiffs themselves had not set up any claim whatsoever for these two plots, i.e., Killa No. 6//18 and 23 and therefore under provisions of Order VIII, Rule 6A of the Code of Civil Procedure 1908 (hereinafter referred to as “CPC”), an independent counter claim having nothing to do with the plaintiffs can never be allowed.
    9. The defendants are now before this Court. The first ground raised by the counsel for the appellant/defendant before thisCourt is that the High Court while deciding a second appeal did not formulate any substantial question of law, which was an essential requirement under Section 100 of the CPC. The learned counsel would argue that a second appeal can only be admitted and heard on a substantial question of law and since no substantial question of law was formulated nor any arguments advanced by the parties before the Second Appellate Court (High Court) as mandated by Section 100 of the CPC, the order of the High Court is liable to be set aside on this ground alone. This seemingly attractive argument, however, does not hold any good in the present case as the subject matter of the present dispute is from Haryana where the governing provision would be Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. This was held by a Constitution Bench of this Court in Pankajakshi & Ors. v. Chandrika & Ors.1 which was later followed in Kirodi v. Ram Parkash & Ors.2

    10. Section 100 of the CPC as it stands today indeed mandates that a second appeal would lie before the High Court only on a substantial question of law, and a Second Appeal has to be heard
    1 (2016) 6 SCC 157 2 (2019) 11 SCC 317
    on the substantial question of law, so formulated by the High Court. The provision of second appeal as it stands today was inserted in the CPC by Amendment Act No. 104 of 1976. Prior to the 1976 amendment, there was no requirement of substantial question of law. The earlier, i.e., unamended position read as under: –
    “100. Second appeal – (1) “Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
    (a) the decision being contrary to law or to some usage having the force of law;
    (b) the decision having failed to determine some material issue of law or usage having the force of law;
    (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
    (2) An appeal may lie under this section from an appellate decree passed ex parte.”
    Under the Punjab Courts Act, 1918, a similar provision is given as regards a second appeal. This is in Section 41 of the Act which is

    in pari materia to the unamended Section 100 of the CPC and reads as follows: –
    “41. Second appeal— (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:
    (a) the decision being contrary to law or to some custom or usage having the force of law:
    (b) the decision having failed to determine some material issue of law or custom or usage having the force of law,
    (c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits;
    [Explanation. – A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this Section]

    (2) An appeal may lie under this section from an appellate decree passed ex parte.”
    11. Initially, it was held by this Court (in Kulwant Kaur v. Gurdial Singh Mann3) that after the 1976 Amendment, Section 100 of the CPC would be applicable in Punjab & Haryana and not Section 41 of the Punjab Courts Act, 1918 and a second appeal has to be decided only on a “substantial question of law”. It was held that after the 1976 Amendment Act, Section 41 of the Punjab Courts Act, stood repealed. Additionally, it was also held that Section 41 of the Punjab Courts Act was repugnant to Section 100 CPC in view of Article 254 of the Constitution of India.
    12. As referred above, the present Section of the 100 CPC was inserted in the CPC by the Amendment Act of 1976. Section 97 of the Amendment Act of 1976 which was relied upon by this Court

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    SATYENDER AND ORS VERSUS SAROJ AND ORS. Judgement_17-Aug-2022

    All Rights Reserved ( Vaibhav Tomar ) 

     

    26Oct, 2023
    Juvenile Justice Care and Protection of Children Act, Section 102 Adoption of child Adoption cannot be denied on the ground that prospective parent is a single lady and a divorcee and she being a working lady will not be able to give personal attention to the child When the statute recognises a single parent to be eligible for being an adoptive parent

     

    Shabnamjahan vs State Of Maharashtra CRA 127/22 11/04/23

    [ CORAM: GAURI GODSE, JUSTICE] [ BOMBAY HIGH COURT ]

    • Juvenile Justice Care and Protection of Children Act, Section 102 Adoption of child Adoption cannot be denied on the ground that prospective parent is a single lady and a divorcee and she being a working lady will not be able to give personal attention to the child When the statute recognises a single parent to be eligible for being an adoptive parent, the approach of the Competent Court defeats the very object of the statute Single or divorced person is eligible for taking a child in adoption Application is rejected only on one ground of the adoptive parent being a working lady.

    Relevant Paras :

    15. The learned Counsel for the Applicants has relied upon a decision of this Court in the case of Sumed s/o. Devidas Thamke and others1 in support of his submissions. In the said case adoption application was rejected by the Competent Court on the ground that since the child was neither a child in conflict with the law, nor a child in need of care and protection, nor an orphan, nor a surrendered/ abandoned child, the provisions of JJ Act were not applicable. This Court, after referring to various provisions of the JJ Act, held that the JJ Act is also applicable for the adoption of a child by a relative from another relative.
    16. In the present case, the Competent Court has rejected the application only on the ground that the prospective parent is a single lady and a divorcee, and she being a workinglady, will not be able to give personal attention to the child per contra the biological parents would be in a better condition to take care of the child. Section 57 of the JJ Act provides the eligibility criteria of a prospective parent. Sub- section (3) of Section 57 holds a single or divorced person eligible for taking a child in adoption. Sub-section (1) of Section 57 states that the prospective adoptive parent shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child to provide a good upbringing to the child. Thus, the reason given by the Competent Court is not only contrary to the provisions of the JJ Act but is also contrary to the recommendation made by the District Child Welfare Officer and the Assistant Director of CARA. Even otherwise, the reason given by the Competent Court is unfounded and baseless.
    17. The Competent Court was required to verify whether the statutory requirements were complied with and, after scrutinising the record of the proceedings, form an opinion as to whether the application for adoption was in the interest of the child. The Competent Court has erroneouslyrejected the application by doing guesswork. The comparison done by the Competent Court between the biological mother being a housewife and the prospective adoptive mother (single parent) being a working lady reflects a mindset of the medieval conservative concepts of a family. When the statute recognises a single parent to be eligible for being an adoptive parent, the approach of the Competent Court defeats the very object of the statute. Generally, a single parent is bound to be a working person, maybe with some rare exceptions. Thus, by no stretch of the imagination, a single parent can be held to be ineligible to be an adoptive parent on the ground that he/she is a working person.

    18. There is nothing adverse shown to me for rejecting the application for adoption. A perusal of the record shows that all the statutory compliances are done. The report of the District Child Welfare Officer and the pre-approved letter issued by the Assistant Director of CARA have found the prospective adoptive parent to be a fit parent for adopting the child. The impugned Order does not record anything
    adverse regarding the statutory compliances. The application is rejected only on one ground of the adoptive parent being a working lady. The reason recorded by the Competent Court is unfounded, illegal, perverse, unjust and unacceptable.

    for read the Judgment click here :

    Miss Shabnamjahan D:o. Moinuddin Ansari vs state of Maharashtra

    all rights reserved (Vaibhav Tomar Adv)

     

     

    20Oct, 2023
    Medical Termination of Pregnancy Act Section 3(2)(b) (i) and 3(3) Medical Termination of Pregnancy Rules, 2003 Rule 3B(C) Permission to termination of pregnancy of 22 weeks 4 days Petitioner was being tortured, abused verbally, physically, mentally and emotionally by her husband

     

    Mrs B vs Union of India WPC 13371/23 16/10/23

    HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD [ DELHI HIGH COURT ]

     

    Medical Termination of Pregnancy Act Section 3(2)(b) (i) and 3(3) Medical Termination of Pregnancy Rules, 2003 Rule 3B(C) Permission to termination of pregnancy of 22 weeks 4 days Petitioner was being tortured, abused verbally, physically, mentally and emotionally by her husband at her matrimonial home She has not filed any FIR against her husband complaining of physical abuse She has not filed any petition for divorce or judicial separation from her husband – A “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy opinion of a Medical Board would be necessary for consideration as to whether it would be safe for the Petitioner to undergo the procedure for termination of pregnancy by a registered medical practitioner and also to ascertain the conditions of the foetus This Court is inclined to direct All India Institute of Medical Sciences, New Delhi to immediately constitute a Medical Board to consider as to whether it will be safe for the Petitioner herein to undergo the procedure for termination of pregnancy or not and also on the condition of fetus. Let the report of the Medical Board, so constituted, be forwarded to this Court within 48 hours.

    Relevant Paras:

    95. Women may undergo a sea change in their lives for reasons other than a separation with their partner (Rule 3B(c)), detection of foetal “abnormalities” (Rule 3B(f)), or a disaster or emergency (Rule 3B(g)). They may find themselves in the same position (socially, mentally, financially, or even physically) as the other categories of women
    enumerated in Rule 3B but for other reasons. For instance, it is not unheard of for a woman to realise that she is pregnant only after the passage of twenty weeks.88 Other examples are if a woman loses her job and is no longer financially secure, or if domestic violence is perpetrated against her,89 or if she suddenly has dependents to support. Moreover, a woman may suddenly be diagnosed with an acute or chronic or life-threatening disease, which impacts her decision on whether to carry the pregnancy to term. If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women.
    96. A recognition of the fact that there may be a change in a woman’s material circumstance animates Rule 3B(c), Rule 3B(g) and Rule 3B(f). However,
    Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo. It merely specifies some of the potential changes to a woman’s material circumstances, in sub-rules (c), (f) and (g). From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not theintention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

    97. It is not possible for either the legislature or the
    courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”
    (emphasis supplied)

    9. Though, in the present case, the facts are entirely different inasmuch as the Petitioner in the present case is a married lady. Moreover, she has not filed any FIR against her husband complaining of physical abuse. She has not filed any petition for divorce or judicial separation from her husband. She has also not approached any Court under the Domestic Violence Act. However, the ratio of the Apex Court is that it is the prerogative of each women to evaluate her life and arrive at the best course of action in view of the change in material circumstance. The Apex Court was of the opinion that change in material circumstance may result when a woman separates from her partner and she may no longer have the financial resources to raise the child. The Apex Court has included the cases of domestic violence perpetrated on a woman under Rule 3B(c) of the MTP Rules wherein a woman is permitted to terminate her pregnancy up to 24 weeks on the ground of change of marital status during the ongoing pregnancy. The Apex Court has held that the right to reproductive autonomy is closely linked with the right to bodily autonomy. The Apex Court has held that theconsequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated and, therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman. The Apex Court has relied on the observations of made by the Apex Court in K S Puttaswamy v. Union of India, (2017) 10 SCC 1, wherein it was held that a “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.” The Apex Court further held that the right to reproductive choice also includes the right not to procreate and in doing so, it situated the reproductive rights of women within the core of constitutional rights and held that decisional autonomy is an integral part of the right to privacy and decisional autonomy is the ability to make decisions in respect of intimate relations. It was finally held by the Apex Court that the MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy. 10. The opinion of a Medical Board would be necessary for consideration as to whether it would be safe for the Petitioner to undergo the procedure for termination of pregnancy by a registered medical practitioner and also to ascertain the conditions of the foetus.
    11. For this purpose, this Court is inclined to direct All India Institute of Medical Sciences, New Delhi to immediately constitute a Medical Board to consider as to whether it will be safe for the Petitioner herein to undergo the procedure for termination of pregnancy or not and also on the condition of fetus. Let the report of the Medical Board, so constituted, be forwarded to this Court within 48 hours from today.

    for read the judgment Click here 

    judgement – 2023-10-18 MRS. B vs THE UNION OF INDIA & ANR

    All Rights Reserved (𝔸𝕕𝕧 Saba Hasan)

     

     

    Mrs B vs Union of India WPC 13371/23 16/10/23 [ PRASAD JJ ] [ DELHI HIGH COURT ]

    20Oct, 2023
    Specific Relief Act Section 34 Suit for Passage Seeking dismissal of suit Defendant contends that no cause of action arose to the plaintiff to bring the suit/ Suit dismissed.

     

    Jagdish vs Sardool RSA 4130/11 28/03/23 [CORAM: HON’BLE MR.JUSTICE H.S.MADAAN

    [ PUNJAB HARYANA HIGH COURT 

    • Specific Relief Act Section 34 Suit for Passage Seeking dismissal of suit Defendant contends that no cause of action arose to the plaintiff to bring the suit and he had done so just to cause harassment to the defendants Plaintiffs claimed that partition has not been formalised and the passage claimed is only access road to his land Presence of Plaintiff was recorded in the roznamcha while demarcation of land for private partition No mention in the roznamcha regarding any passage having been left through land of defendants, for use of the plaintiff as approach to the chunk of land allotted to him during partition – Thus the stand of the plaintiff that land has not been formally partitioned stood nullified – Suit dismissed.

    Relevant Paras:

    4. On getting notice, the defendants appeared and filed written statement admitting that plaintiff and defendants had a joint khewat earlier measuring 150 bighas 8 biswas. As per the stand taken by the defendants, the parties are in cultivating possession of the same since 27.4.1978; it was partitioned with mutual consent and mutation No.824 was sanctioned in that regard on 27.4.1978; the defendant No.1 has installed his tubewell in khasra No.327/1 besidesconstructing a kotha therein with which the plaintiff has no concern; as a matter of fact, he is no more co-sharer in the land after the partition as mentioned supra; no passage is in existence at the spot as alleged by the plaintiff, rather it is joint land of defendants and is in their cultivating possession; no cause of action arose to the plaintiff to bring the suit and he had done so just to cause harassment to the defendants. The defendants prayed for dismissal of the suit.
    5. The plaintiff had filed replication controverting the allegations in the written statement whereas reiterating the averments in the plaint.

     

    9. The plaintiff was aggrieved by the said judgment and decree and he had filed an appeal before the Court of District Judge, Patiala, which was assigned to Additional District Judge, Patiala, who vide judgment and decree dated 22.3.2011 accepted the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff to the extent that their exists a passage as depicted in the site plan attached with the report of the Local Commissioner dated 29.5.2001. Accordingly, defendants were restrained from interfering in the peaceful use of the passage by the plaintiff as depicted in the site plan attached to the report of Local Commissioner dated 29.5.2001. However, the findings with regard to partition having already taken place was affirmed.

    14. However, the First Appellate Court of Additional District Judge, Patiala by ignoring the cogent and convincing evidence brought on record by the defendants showing absence of any passage, went on to rely upon the oral evidence as well as report by Local Commissioner so as to come to the conclusion that such passage is there. It is a clear case of misappraisal of evidence and wrong interpretation of law. The law is well settled that documentary evidence takes precedence over the oral evidence and revenue record is best type of evidence to see the ownership and possession of the land bearing khasra numbers as well as existence of any passage therein. When no such passage is reflected in the revenue record giving undue importance to report of Local Commissioner, who goes to the spot for a short time and with possibility of his susceptibility for giving a wrong report being there, the First Appellate Court was not justified in placing too much reliance upon the report of the Local Commissioner while drawing an inference that such passage was actually there at the spot being used by the plaintiff and while saying so ignoring overwhelming cogent and convincing evidence to the contrary available on the record.

    15. Learned counsel for the appellant has stated that the partition has become final since order passed in that regard had been affirmed by Financial Commissioner Revenue Punjab vide order dated 10.8.2022, copy of which has been placed on record and an application been filed on behalf of the appellant to produce it by way of additional evidence.

     

    For read the Judgment Click Here 

    Jagdish Singh RSA-4130-2011(O&M) Versus Sardool Singh @ Sahurat Singh alias Suhrid Singh

     

    all rights reserved (Vaibhav Tomar 𝔸𝕕𝕧)

    30Sep, 2023
    PC ACT Sections 7 and 13(2) – Discharge of public servant for want of sanction In the event of discharge of a public servant for want of sanction or illegality of sanction/Punjab & Haryana HC

     

    IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
    CRM-M-11381-2016 (O&M)
    Reserved on: 23.08.2023.
    Pronounced on: 15.09.2023

    Tulsi Ram Mishra … Petitioner
    Versus
    State of Punjab and others … Respondents
    CORAM: HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL

    • PC ACT Sections 7 and 13(2) – Discharge of public servant for want of sanction In the event of discharge of a public servant for want of sanction or illegality of sanction, the matter ought not be closed but revived on the grant of sanction by the competent authority Prosecution in absence of sanction would be vitiated Public servant may take objections with regard to validity or absence of a valid sanction at cognizance stage but after the commencement of the trial he may take objections at the time of conclusion of the trial, but the trial shall not be scuttled in the midst This Court does not find any manifest illegality in the impugned order discharging respondent No.2 for the time being, but at the same time this Court deems it fit to direct the State of Punjab to forward all documents pertaining to the consideration for grant of sanction to prosecute respondent No.2 to the Central Government.

    (c) Consequences of invalid sanction
    18. Now, this Court would proceed to determine the consequencesof invalid sanction or sanction accorded by an incompetent authority. I would not accept the contention of counsel for the petitioner that the question of improper or invalid sanction could only be determined at the conclusion of the trial and the accused has to prove that the order had caused grave prejudice to him for the reason that this question is no longer res integra. The Supreme Court in the case of Nanjappa v. State of Karnataka (supra), after examining the provisions of Sections 19(1), 19(3) and 19(4) of the PC Act, had held that sub-sections (3) and (4) of Section 19 of the PC Act stipulate challenge to the validity of the order of sanction or validity of proceedings at the appellate or revisional stage before the higher court and
    not before the Special Judge and that it does not forbid a Special Judge from passing an order of discharge if a valid order sanctioning prosecution is not produced in terms of Section 19 (1) of the PC Act. The relevant paragraphs
    of the judgement are reproduced hereunder:-
    “7. We have heard the learned counsel for the parties at considerable length. This appeal must, in our opinion, succeed on the short ground that in the absence of a valid previous sanction required under Section 19 of the Prevention of Corruption Act, the trial court was not competent to take cognizance of the offence
    alleged against the appellant.

    10. A plain reading of Section 19(1)(supra) leaves no manner of doubt that the same is couched in mandatory terms and forbids courts from taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15
    against public servants except with the previous sanction of the competent authority enumerated
    in clauses (a), (b) and (c) to sub-section (1) of Section 19. The provision contained in subsection (1) would operate in absolute terms but for the presence of sub-section (3) to Section 19 to which we shall presently turn. But before we
    do so, we wish to emphasise that the language employed in sub-section (1) of Section 19 admits of no equivocation and operates as a complete and absolute bar to any court taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 of the Act against a public servant except with the previous sanction of the competent authority.

    ALL RIGHTS RESERVED (ADV VAIBHAV TOMAR)

    FOR MORE CLICK HERE FOR READ THE JUDGMENT

    CRM-M_11381_2016_15_09_2023_FINAL_ORDER Punjab & Haryana High Court