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    20Jun, 2023
    Transfer of Property Act, Section 48 Easements Act, Section 41 Easmentary Right Where a person has created different rights in or over the same property and such rights cannot be exercised to their full extent together


    DR. S. KUMAR vs RAMALINGAM CA 8628/09 16/07/19 [ (Justice L. Nageswara Rao) & (Justice Hemant Gupta)]

    [ SUPREME COURT OF INDIA ]

    • Transfer of Property Act, Section 48 Easements Act, Section 41 Easmentary Right Where a person has created different rights in or over the same property and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed will not be legal till such time the earlier transferee has a special contract or reservation which binds her. Since the right of access to defendant No. 2 was reserved in the sale deed, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed – Plaintiff has to maintain the property in any case in terms of the recital in his sale deed Therefore, if the defendant No. 2 or her transferees use the passage, then such use of passage by defendant No. 2 or her transferees cannot be said to be causing any prejudice to the plaintiff – Argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case – Argument is based on the fact that right, title and interest of both the defendants now stand merged in one person after the death of both the defendants. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because the defendant No. 2 has gifted part of land to defendant No. 1 or that after the death of both the defendants, the common legal proceedings inherited the property – Appellants have been granted right to use passage in the sale deed – Thus, it is not easement of necessity being claimed by the appellants. It is right granted to defendant No. 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act High Court suffers from manifest error and, thus, cannot be sustained in law Appeal allowed.


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    DR. S. KUMAR & ORS. Vs RAMALINGAM_Judgement_16-Jul-2019 SUPREME COURT
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    19Jun, 2023
    Section 302 IPC Evidence Act Section 106 Murder Burden of proving Accused and deceased usually stayed together in the house

    NATHU MUNDA vs STATE OF ASSAM CRLA 108/17 04/03/20 

    BEFORE ( DOUBLE BENCH)
    HON’BLE MR. JUSTICE SUMAN SHYAM
    HON’BLE MR. JUSTICE HITESH KUMAR SARMA 

    [ GAUHATI HIGH COURT ]

    • Section 302 IPC Evidence Act Section 106 Murder Burden of proving Accused and deceased usually stayed together in the house do not necessarily mean that on the date as well at the time of occurrence also, they were together Prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused was in his house on the date of occurrence and the deceased usually resided with him there in that house But, there is no evidence to establish that at the time of occurrence, the deceased was with the accused in his house Not find the conviction of the accused is based on evidence on record. Therefore, he deserves acquittal on benefit of doubt.

     

    Relevant Paras 

    12) The evidence of PW3 & PW4 has no bearing on the decision of this case as none of them has indicated in their evidence as to the source of their information that the accused- appellant had assaulted the deceased. Therefore, their evidence remains hearsay having no evidentiary value.
    13) PW5, Dr. Debarshee, is the autopsy doctor. On 15.07.2016, she had performed the postmortem examination on the dead body of the deceased Somari and found as follows.
    External Appearance: A female dead body of average built and swarthy complexion with eyes closed and mouth partially opened. Wearing a red colour blouse and brown petticoat. Swelling of the left perioribital area is present. The rigor mortis is found to be present all over the body and the body was cold to touch externally and warm internally.
    Injuries:-
    1. A contusion of size 3 cm x 2 cm is present in the 6th intercoastal space in the mid axillary line on the right side of the chest;
    2. A contusion of size 16 cm x 14 cm is present over anterolateral aspect of left arm along with swelling;
    3. The left ear lobule is found to be lacerated at places. The margins of the wound are found to be contused and irregular;
    4. Sternum is found fractured in its upper one third;
    5. 2nd, 3rd, 4th, 5th and 6th ribs are found fractured in the mid clavicular
    in the right chest;
    6. 2nd, 3rd, 4th and 5th ribs are found fractured in the mid calvicular line on the left side of chest.
    On examination of cranium and spinal canal: Scalp healthy. Left temporalies muscle found
    contused at places. Skull and vertebrae are healthy. Membrane and brain are pale. Spinal cord not examined.

    On examination of the abdomen: The superior surface of the liver is found lacerated and the size of the laceration is 6.5 cm x 1 cm x liver parenchyma deep. Spleen was healthy. Kidneys are pale. The bladder mucosa was pale and the bladder cavity was empty. The walls were healthy and on dissection, the abdominal cavity was found to contain 1200 ml liquid and clotted blood. Peritoneum was pale. Mouth, pharynx and oesophagus, mucosa was pale in stomach. Mucosa was pale and the stomach cavity was empty and small intestine, mucosa was pale and contents glue like contents. Large intestine, mucosa was pale and contained gaseous and fecal matters.
    Thorax:- Walls as described. Ribs and carrilaged as descried. On dissection, the chest cavity was found to contain 400 ml liquid and clotted blood.
    Pleurae:- Pleurae were pale and lacerated on the right side at places. Larynx and trachea: mucosa were pale. Right lung was found lacerated and contused at places. Left lung was contused at places. Pericardium was contused at places. Heart was healthy and chambers were found empty. Thorasic vessels were found healthy. Organs of generation externally healthy and internally uterus was empty and healthy. Others were found healthy.


    The opinion of the doctor is follows:
    Death was due to hemorrhagic shock as a result of the injuries sustained over abdomen and chest as described. All the injuries described were ante mortem and caused by blunt force impact. Approximate time since death 6-12 hours.
    14) The evidence of PW6, the investigating officer, is that on 15.07.2016 he had received the FIR from PW1 and thereafter he had investigated into the case. He prepared the sketch- map of the place of occurrence vide Ext. 5. He also caused the inquest of the dead body done by one Executive Magistrate, namely, A. Baruah. He also visited the place of occurrence and sent the dead body of the deceased for postmortem examination. He also found the accused persons at the place of occurrence and arrested him. He recorded the statement of the accused-appellant and after completion of the investigation filed the charge-sheet. He has confirmed in his evidence that the PW2 had made a statement before him that the accused-appellant had told him that on the last night he had given a slap on the body of the deceased following which she fell down.
    15) The evidence of the autopsy doctor (PW5) and her opinion show that the deceased had died due to the hemorrhagic shock as a result of the injuries sustained over abdomen and chest and the injuries were ante mortem in nature. There is no evidence adduced by any of the witnesses that the accused-appellant had assaulted the injured on any part of her body except on ear. From the judgment of the learned trial court, it appears that the conviction of the accused-appellant is based on circumstantial evidence as indicated in paragraph-22 of the impugned judgment. The circumstances, as pointed out by the learned trial court, are,

    i) Last seen together theory,
    ii) Recovery of the dead body of the deceased Somari from the accused person’s house; and
    iii) Severe injuries detected on the body.
    16) That apart, the learned trial court has also held that since the dead body was found in the house of the accused-appellant and as the accused-appellant and his deceased wife were the only occupants of the house, the accused-appellant is required to furnish an explanation as to under what circumstances the deceased had died.
    17) We have already found that the evidence of none of the witnesses has implicated the accused-appellant with the commission of the alleged offence except speaking in unison that the dead body of the deceased was found lying in the house of the accused-appellant.

    20) In this case, we have noticed that the circumstances of last seen together theory has not been proved by the prosecution. There is an explanation given in his statement under Section 313 Cr.PC by the accused-appellant that his wife/deceased left the house in the night with his permission. Section 106 Indian Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. From the evidence discussed above, we have already found that the prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused-appellant was in his house on the date of occurrence and the deceased usually resided with him there in that house. But, there is no evidence to establish that at the  time of occurrence, the deceased was with the accused-appellant in his house. Such fact has to be read in combination with the explanation of the appellant given in his statement under Section 313 Cr.PC. The accused-appellant had stated in his statement that he did not know as to at what time the deceased had come back home after she left the house with his permission. Apart from that, to base conviction on circumstantial evidence there has to be a consistent chain of circumstantial pointing unerringly to the guilt of the accused. But, here in this case we have not found any circumstance, except the evidence thattheaccusedappellantandthedeceasedusuallystayedtogetherintheirhouse. Forthis circumstance only, in spite of failure on the part of the prosecution to discharge its initial burden to prove the case, we are unable to persuade ourselves to hold the accused- appellant guilty of commission of murder of the deceased taking refuge of the provisions of Section 106 of the Indian Evidence Act.

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    Judgment Gauhati High Court -PS. Khowang vs state Acquittal display_pdf (3)


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    18Jun, 2023
    Section 154 CRPC Indian Evidence Act, 1872 Section 45 First Information Report Murder Two appeal against same Prosecution case as spelt out in the FIR which was lodged by P. W. 1 claiming himself to be an eye witness of the occurrence

    Case :- CRIMINAL APPEAL No. – 1263 of 2015 Appellant :- Mohd. Azam
    Respondent :- State Of U.P.

    Connected with
    Case :- CRIMINAL APPEAL No. – 745 of 2015
    Appellant :- Liaqat And Another
    Respondent :- State Of U.P.

    Hon’ble Bala Krishna Narayana,J. Hon’ble Irshad Ali,_

    • Section 154 CRPC Indian Evidence Act, 1872 Section 45 First Information Report Murder Two appeal against same Prosecution case as spelt out in the FIR which was lodged by P. W. 1 claiming himself to be an eye witness of the occurrence was that the deceased had received one gun shot each from the appellant Whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not Where the First Information Report is apparently a suspicious document and finds no corroboration from the Inquest report, then no reliance can be placed on the story of the prosecution as alleged therein Admittedly, the firearm weapons which were allegedly used by the accused appellants for committing the murder of the deceased were never recovered during investigation Report of forensic expert regarding the bullet and the pellet which were recovered from the body of the deceased, plain and bloodstained earth recovered from the place of occurrence and the clothes of the deceased Forensic evidence on record is not at all sufficient to link the appellants with the offence for which they have been convicted Absence of recovery of any fire arms from the accused coupled with the fact that the blood stains were either totally disintegrated or not capable of any classification in the report of the serologist would render the forensic evidence insufficient to link the accused with the commission of the alleged offence Prosecution has miserably failed to prove its case against the appellants beyond all reasonable doubts Neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside Ordered accordingly.

    [Relevant Paras]

     

    17. We now proceed to evaluate the evidence of P. W. 4 Asharfi Lal on the aforesaid aspect of the matter. P. W. 4 Asharfi Lal in his examination-in-chief on page 32 of the paper book has deposed that he was posted as Officer-In- Charge of Police Station Devgaon on 28.12.1995. On that day at about 10 A.M., P. W. 1 Abdul Kalam son of Mohd. Islam along with his 4 or 5 companions had come to the police station at about 10 A.M. On the information given to him by P. W. 1 Abdul Kalam that one Imamuddin @ Buggu resident of Village Katauli Khurd had been shot dead, he after issuing the necessary directions to register the case, reached the place of occurrence along with his force in a government jeep in village katauli Khurd and on reaching there he saw a dead body lying on cot. He after nominating the inquest witnesses commenced the inquest proceedings at 11 A.M. The inquest report which is on record as Ext. Ka4 also indicates that inquest proceedings had commenced pursuant to the information given at the police station by Abdul Kalam son of Mohd. Islam that Imamuddin @ Buggu had been shot dead. The inquest report Ext. Ka4 neither mentions the case crime number nor the names of the accused. P. W. 4 Asharfi Lal was re-examined and he in his re-examination on page 37 of the paper book deposed that the FIR of the incident which was on the record of the case was prepared on the basis of the written complaint given by Mohd. Ashahad son of Ayyub Ahmad on 28.12.1995 which is on record as Ext. Ka1. He further deposed before the Court that he was not aware about the fact whether there was any other person in village Katauli Khurd called Abdul Kalam son of Islam or not. He was also not aware whether the name of the father of Abdul Kalam is Ayyub or not. Chek FIR was not prepared on the basis of the written report given to him at the place of occurrence at the time when he had gone there to conduct inquest proceedings. He had received the written report of the occurrence when he had returned to the police station after completing the inquest proceedings which was signed by P. W. 2 Ashahad. The written report signed by Ashahad was received by him after 4 hours. He had scolded the Munshi for his having not prepared the chek FIR after receiving the written complaint of Abdul Kalam.

    19. Thus, the credibility of the FIR in this case stands totally shattered in view of the evidence on record. Since the FIR in this case itself appears to be a devious, bogus and fictitious document, hence no reliance on the prosecution story as spelt out therein can be placed.

    22. Admittedly the firearm weapons which were allegedly used by the accused-appellants for committing the murder of the deceased were never recovered during investigation. We are absolutely in the dark about the kind of weapons which were used by the culprits. The report of forensic expert vis-a-vis the bullet and the pellet which were recovered from the body of the deceased, Imamuddin @ Buggu, plain and bloodstained earth recovered from the place of occurrence and the clothes of the deceased Ext. Ka12 merely states that the blood was found on the bloodstained earth and other articles sent for forensic examination but the same were either totally disintegrated or not capable of classification. We are afraid that the forensic evidence on record is not at all sufficient to link the appellants with the offence for which they have been convicted. Moreover, neither there is any evidence nor any suggestion which may indicate as to which out of two accused, Mohd. Azam and non-appellant, Ajaz had shot at the deceased with the double barrel gun. The three ante mortem injuries noted by P. W. 3 Dr. Rajendra Prasad, Chief Pharmacist, Police Hospital, District Azamgarh on the body of the deceased, Imamuddin @ Buggu are on different parts of his dead body, although, the three witnesses of the occurrence have stated in unison that the two shots were fired by the appellants at the deceased.

    23. In the instant case, the accused-appellants were neither apprehended on the spot nor any firearm was recovered from them or on their pointing out at any stage of the investigation.
    24. Thus, in the present case, we find that the manner of assault as described in the FIR and later testified by the three witnesses of fact produced during the trial by the prosecution does not find corroboration from the medical evidence on record which puts a big question mark against their claim of being eye-witnesses of the occurrence. Moreover, all the three witnesses of fact, two of them namely P. W. 1 Abdul Kalam and P. W. 2 Ashahad being the real brothers of the deceased while P. W. 5 Javed Khan his cousin brother, are highly interested witnesses. It is true that the evidence of a witness cannot be discarded merely on account of his being a relative of the deceased if upon a cautious appraisal of his evidence, the Court comes to the conclusion that he has given correct and cogent description of the incident but considering the material contradictions in their testimonies inter alia on the point of time and the identity of the person who had lodged the FIR of the occurrence and the irreconcilable conflict between the ocular version and the medical evidence with regard to the number of shots fired at the deceased by the accused-appellants, it cannot be said that the three witnesses of fact have given cogent and correct description of the occurrence and that their evidence is wholly reliable and trustworthy. The previous enmity between the parties could be a very strong reason for them to falsely implicate the appellants after the dead body of the deceased was found.

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    CRLA(A)_1263_2015 (1) Mohd. Azam va State Of U.P. & liyaqat va state of up

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    18Jun, 2023
    Order 7, Rule 14 and Order 11, Rule 1 (5) CPC Additional documents on record Filing of Held, while examining application under Order 11, Rule 1 (5) court not entitled to pronounce on correctness of genuineness of documents


    ISLAMUDDIN vs KAPOOR

    CMM 1137/22 01/11/22

    [C. HARI SHANKAR, J.] [ DELHI HIGH COURT ]

    • Order 7, Rule 14 and Order 11, Rule 1 (5) CPC Additional documents on record Filing of Held, while examining application under Order 11, Rule 1 (5) court not entitled to pronounce on correctness of genuineness of documents which petitioner seeks to introduce Petitioner required to show whether sufficient cause existed for having failed to file additional documents with plaint On facts, failure to file three invoices and handwritten documents along with plaint explained by pointing out that plaint filed during currency of COVID-19 pandemic, during which it was difficult to contact counsel In interests of justice, petitioner allowed to place documents on record subject to costs of Rs. 15,000/- Respondent also entitled to file additional or amended written statements to meet said document

    [Relevant Paras]

    10. Mr. Sanjeev Kumar has correctly drawn my attention to the following passage from Sudhir Kumar1 in which the Supreme Court has clearly held that while examining the application under Order XI Rule 1(5) of the CPC the court is not entitled to pronounce on the correctness of the genuineness of the documents which the petitioner seeks to introduce:
    “35. Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order XXXIX Rule 1 that too while considering prima facie case.Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the
    application as additional documents.”
    The Court is therefore, only required to examine whether there is sufficient cause for the documents not having been filed along with the plaint. The evidentiary or other value of the document vis-a-vis the controversy in issue in the plaint, is a consideration alien to Order XI Rule 1(5).
    11. Significantly, all that the petitioner is required to show under Order XI Rule 1(5) of the CPC is whether the sufficient cause existed for the Petitioner having failed to file the additional documents with the plaint. If there is sufficient cause for the documents not been filed with the plaint, any subsequent or later delay in introducing the documents has not been regarded statutorily as a relevant consideration under Order XI Rule 1(5) of the CPC. In the present case, the failure to file the three invoices and the hand written documents along with the plaint has been sought to be explained by pointing out that the plaint was filed during the currency of the COVID-19 pandemic, during which period it was difficult to contact the counsel. Though the learned District Judge has not chosen to believe this contention, the law laid down by the Supreme Court in Sugandhi4 persuaded me to, in the interests of justice, to allow the documents which the petitioner sought to place, on record to be so placed, subject to costs of ₹ 15,000/- to be paid by the petitioner to the respondents within four weeks from today.
    12. Needless to say, since additional documents have been sought to be placed on record, the respondent would also be entitled to file an additional or amended written statement to meet the said document.Any such request if made shall be allowed by the learned Commercial Court.

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    judgement MD. ISLAMUDDIN VS S S KAPOOR DELHI HIGH COURT THE LAW LITERATES

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    15Jun, 2023
    Hindu Marriage Act, Section 13(1)(i-a) The petition was presented by the husband Dismissal of The plea of husband mainly on the ground that divorce has taken place in the community Panchayat

    Case :- FIRST APPEAL No. – 405 of 2013 Appellant :- Ravindra Pratap Yadav Respondent :- Smt. Asha Devi And Others Counsel for Appellant :- M. Islam,Ahmad Saeed,Azim Ahmad Kazmi

    [Hon’ble Suneet Kumar,J. Hon’ble Rajendra Kumar-IV,J.

    [ ALLAHABAD HIGH COURT ]

    • Hindu Marriage Act, Section 13(1)(i-a) The petition was presented by the husband Dismissal of The plea of husband mainly on the ground that divorce has taken place in the community Panchayat The wife categorically refused to resume co-habitation There is nothing on record to disbelieve the husband’s case as well his uncontroverted evidence Not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse There is no acceptable view in which a spouse can be compelled to resume life with the consort Impugned order of the Family Court is quashed and set asideThe marriage petition filed by the husband stands allowed granting decree of divorce Appeal succeeds and is accordingly, allowed.

    17. In Vinita Saxena vs. Pankaj Pandit, (2006) 3 SCC 778, on the aspect of mental cruelty the Apex Court made the following observations:
    “31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
    32. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the [pic]impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

    18. Since there is no acceptable view in which a spouse can be compelled to resume life with the consort, nothing is given by trying to keep the parties tied forever to a marriage than that has ceased to in fact.
    19. From the perusal of plaint and other evidence available on record, we are unable to persuade ourselves to accept the view taken by the court below.
    20. In view of the discussion herein above, appeal succeeds and is accordingly, allowed. Impugned order of the Family Court is quashed and set aside. The marriage petition filed by the plaintiff-appellant stands allowed granting decree of divorce.

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    FAPL(A)_405_2013 Allahabad High Court- Ravindra Pratap Yadav vs Smt. Asha Devi And Others

     

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    15Jun, 2023
    Hindu Marriage Act Section 13 Divorce Cruelty and desertion by wife Desertion is not a withdrawal from a place but from a state of things It is repudiation by one of all obligations of marriage

    NISHA vs SOHAN MATAPPFC 82/14 06/01/17 [ Pradeep JJ ].  [ DELHI HIGH COURT ]

    CORAM:
    HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MR. JUSTICE YOGESH KHANNA

    • Hindu Marriage Act Section 13 Divorce Cruelty and desertion by wife Desertion is not a withdrawal from a place but from a state of things It is repudiation by one of all obligations of marriage It is abandonment of one spouse by other without any reasonable cause and without consent of other Respondent insulted his wife who was under intense trauma on death of her first child Filing of petition of divorce on false ground and then unilaterally withdrawing it rather adds to cruelty upon other spouse Respondent rather had deserted appellant and even today she has to fight for her maintenance Impugned judgment and decree set aside.

    Relevant Paras :

    18. Thus, looking at the material which has come on record it is clear that wife had sufficient grounds to live separately. We are of the view that learned Judge, Family Court, Dwarka, has misread the evidence and though the appellant left the matrimonial home, but she never wished to bring her marital ties permanently to an end. The desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately.

    19. In the decision reported as (2010) 4 SCC 476 Ravi Kumar vs Julmidevi the Supreme Court has observed as under:-

    “13. It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

    20. Thus, the facts above do show that appellant was forced by the conduct of the respondent to leave the matrimonial home and that it is the respondent who is guilty of constructive desertion and had made the appellant and her daughter run from pillar to post even for their bare minimum maintenance and had rather failed to prove the behavior of the appellant towards him was such that it ever caused a reasonable apprehension in his mind that it was not safe for him to continue the matrimonial relations with the appellant. The respondent herein had failed to bring his case within the parameters of cruelty and desertion as defined and as such, we set aside the impugned judgment dated November 22, 2013 of the learned Judge, Family Court, Dwarka in HMA No.444/2009 tilted ‘Sohan Singh Nehra vs Nisha Rani’

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    MRS. NISHA RANI VS SOHAN SINGH NEHRA JUDGMENT DELHI HIGH COURT THE LAW LITERATES

     

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    15Jun, 2023
    Order 6, Rule 17, Proviso CPC Amendment of plaint No application of amendment shall be allowed after trial has commenced, unless Court comes to conclusion that in spite of due diligence party could not have raised the matter before commencement

     

    Delhi High Court (Justice Jayanth Nath)

    IA No.8419/2013 in CS(OS) 2154/2010
    RAJ RANI & ANR 
    versus
    SUMITRA PARASHAR & ANR

    • Order 6, Rule 17, Proviso CPC Amendment of plaint No application of amendment shall be allowed after trial has commenced, unless Court comes to conclusion that in spite of due diligence party could not have raised the matter before commencement of trial Plaintiff has given a plausible explanation to show that despite due diligence he could not have inserted amendments Even assuming that present application has not been filed without due diligence, amendment as sought by plaintiff cannot be shut out Amendments sought are necessary for the purpose of determining real questions in controversy Application is allowed subject to payment of costs of 20,000/- payable to defendant.

    Relevant Paras:

    10. Learned senior counsel for the defendant, on the other hand, has vehemently opposed the present application. It is urged that the present application, apart from being barred under Order 6 Rule 17 CPC is nothing but a dilatory tactic. It is averred that issues were framed on 28.11.2011.
    Evidence of PW 1 has been filed on 19.1.2012 and was tendered on 2.5.2012. Thereafter the plaintiff has filed an application under Order 14 Rule 5 CPC for dropping of issue No.4 which was also dismissed on 18.2.2013. In May, 2013 the present application is filed belatedly. It is further urged that the evidence has already commenced. Hence, in view of proviso to Order 6 Rule 17 CPC the present application is barred. Reliance is placed on the judgment of the Supreme Court in Rajkumar Gurawara versus S.K.Sarwagi and Company Private Limited and another (2008) 14 SCC364, Salem Advocate Bar Association versus Union of India, (2005) 6 SCC 344 and Vidyabai and others versus Padamlatha and another, (2009) 2 SC 409 to contend that the proviso to Order 6 Rule 17 is couched in a mandatory form and that the jurisdiction of this Court is taken away when evidence has commenced, unless the party seeking an amendment can show that in spite of due diligence the said party could not have raised the matter before commencement of trial.
    11. Learned senior counsel for the plaintiff in rebuttal has stressed that no doubt the evidence by way of Affidavit of PW 1 has been filed and tendered in evidence. However, it is urged that cross-examination is yet to commence. Further, only nominal examination-in-chief took place on one date of hearing. He submits that no prejudice would be caused to the defendant in case the present amendment is allowed. Reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Baldev Singh and others versus Manohar Singh and another, 2006(6) SCC 498 and; Pankaja and Another versus Yellapa (2004) 6 SCC 415 and judgment of this High Court in the case of Link Engineers (P.) Ltd. vs. ASEA Brown Boveri Limited & Ors., 140(2007) DLT 533 to contend that the proviso is applicable only once the entire pleadings are completed and the discretion of the Court in allowing an amendment has not been completely done away with but has only been curtailed.

     

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    RAJ RANI & ANR VS SUMITRA & ORS JUDGMENT DEKHI HIGH COURT 2014 the law literates

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    15Jun, 2023
    Order 12 Rule 6 CPC Power to pass judgment on admissions Power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a matter of right Legislative intent

     

    THE LAW LITERATES 


    KARAN vs MADHURI CA 4545/22 06/07/22 (double bench)

    JUSTICE  INDIRA BANERJEE
    &
    JUSTICE J.K. MAHESHWARI

    [ SUPREME COURT OF INDIA ]

     

    • Order 12 Rule 6 CPC Power to pass judgment on admissions Power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a matter of right Legislative intent is clear by using the word ‘may’ and ‘as it may think fit’ to the nature of admission Said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke the power of Order XII Rule 6 – Said provision has been brought with intent that if admission of facts raised by one side is admitted by other, and the Court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence – Therefore, to save the time and money of the Court and respective parties, the said provision has been brought in the statute – To pass a judgment on admission, the Court if thinks fit may pass an order at any stage of the suit – In case the judgment is pronounced by the Court a decree be drawn accordingly and parties to the case is not required to go for trial.

    Relevant Paras:

    20. Learned counsel for the Appellant has placed heavy reliance on a judgment of R. Kanthimathi (supra). In the said case, this Court has specified that any jural relationship between two persons could be created through an agreement and similarly could be changed through an agreement subject to the limitations under the law. However, it is urged that the relationship of the Appellant has now been changed to purchaser on signing the ATS­I by landlord subsequent to lease agreement, therefore the relationship of landlord and tenant extinguishes. Reliance has also been placed on the judgment of Himani Alloys Limited (supra) and it has been urged by Appellant that in case the admission is not of the amount as alleged and not categoric and clear, the decree under Order XII Rule 6 cannot be directed. The case of Hari Steel (supra) has also been relied upon to contend that the relief under Order XII Rule 6 is discretionary and the Court should not deny the valuable right of the Defendant to contest the suit, meaning thereby, the discretion should be used only when there is a clear, categorical and unconditional admission and such right should not be exercised to deny valuable right of a Defendant to contest the claim based on defense taken. Further, relying upon the judgment of

    Shrimant Shanrao Suryavanshi (supra), it has been contended that when a possession is with the Appellant by virtue of a part performance of agreement to sell as prescribed under Section 53 of the Transfer of Property Act, 1882, he has right to defend or protect his possession.
    21. On the other hand, Ms. Meenakshi Arora, learned senior counsel, placed reliance on the judgment of Nagindas Ramdas (supra), inter alia, contending that the admissions if true and clear are the best proof of the fact admitted, it is also stated the admissions in the pleadings or judicial admissions admissible under Section 58 of the Evidence Act,
    1872, made by the parties or their agents at or before hearing of the case stands on higher footings than evidentiary admissions. It is binding and constitute the waiver of proof. Learned senior counsel further submits that the judgment of R. Kanthimathi (supra) is distinguishable with the present case. In the said case, after referring the terms of the agreement it reflected that the major amount of sale consideration was paid and only Rs.5,000/­ was remaining to be paid. Also, by conveyance the possession of property was surrendered, therefore, Court said that the jural relationship between the persons were changed by way of subsequent agreement subject to the limitations under the law. While in the present case ATS­I was executed on 22.04.2017. In clause 2 of the said agreement, it was specifically mentioned “however, no advance – earnest money has been paid to the first party”. With respect to possession, it was mentioned that it shall be handed over on spot. Thus, out of the total sale consideration of Rs.3,60,00,000/­ nothing was paid and the Appellant was in possession under the Lease Agreement as tenant. The document Annexure P­1 (Advance Receipt­cum Agreement to Sale & Purchase) produced alongwith the paperbook of appeal is a document which has not been produced before the lower Court. Thus, vide order dated 07.10.2021, it was made clear by this Court that the said document be deleted from the paperbook of this case. In view

    of the said distinction drawn it was urged that judgment of R. Kanthimathi (supra) is of no help to the Appellant.


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    karan-kapoor-vs-madhuri-kumar-Judgment -Vaibhav Tomar-The Law literates

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    13Jun, 2023
    Hindu Marriage Act Section 13(1)(ia) and (ib) Divorce Cruelty and desertion on part of spouse Accusation of cruelty is a very grave and serious charge and Court should insist on proof

    KANNUSAMY vs SUMATHI CMA 1652/15 24/01/17

    [M.JAICHANDREN,J. & T.MATHIVANAN,J]

    [ MADRAS HIGH COURT ]

    • Hindu Marriage Act Section 13(1)(ia) and (ib) Divorce Cruelty and desertion on part of spouse Accusation of cruelty is a very grave and serious charge and Court should insist on proof with same degree of strictness as in case of a criminal offence Decree of divorce cannot per se be granted on the basis of allegations made in pleadings What has not been stipulated by legislature, cannot be read into or imputed in the section In order to arrive at a definite conclusion that marriage has irretrievably broken down, Court must endeavour to analyse attendant circumstances in order to determine veracity of such allegations before arriving at a conclusion.

    Relevant paras: 

    21. We have carefully perused the grounds of appeal along with the impugned order. We have also perused the relevant materials and considered the submissions made on behalf of both sides. As rightly addressed by Mr.D.Selvaraju, learned counsel appearing for the respondent, the appellant had miserably and unfortunately failed to prove the allegation of cruelty and desertion.
    22. With reference to this concept, we would like to place it on record that insofar as clause (ia) of Sub-Section (1) of Section 13 of the Act is concerned i.e., with reference to the term cruelty, the offending spouse must have treated the appellant with cruelty and the Court has to ascertain whether or not there was anything which could be described as treatment or conduct of the nature discussed above. There are no limits to the kind of treatment or conduct that might constitute cruelty. It is settled position of law that to amount to cruelty, the acts must be of a very serious nature than mere wear and tear of married life. The Apex Court in J. L. Nanda vs Smt. Veena Nanda reported in AIR 1988 SC 407 has observed that sometimes, the temperament of the parties may not be conducive to each other, which may result in petty quarrels. There is difference between original wear and tear of married life and when the disputes between the parties are not attributable to cruelty, no divorce can be granted.

    23. On coming to clause (ib)of Sub-Section (1) of Section 13 of the Act, we may say that desertion per se was not a ground for the relief by way of divorce prior to the amendment of this section by the Amending Act of 1976, but was only a ground for the relief of judicial separation under clause (a) of sec.10(1) which was in identical terms.
    24. The expression ‘desertion’ in the context of of matrimonial law represents a legal conception and is only very difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. It has been said more than once that no judge has ever attempted to give a comprehensive definition of desertion, and that probably no Judge would ever succeed in doing so, but among the descriptions of desertion one which has always appealed to courts trying matrimonial causes is that ‘desertion’ is ‘a withdrawal not from a place, but from a state of things’. This principle laid down in Pulford v. Pulford reported (1923) p.18, p.21. From the available materials we would like to express our view that the allegations levelled by the appellant cannot be termed as willful neglect on the part of the respondent.

    27. However, it is a firmly established rule that the ground for the relief in a matrimonial cause should be strictly proved. As observed in the forgoing paragraphs, the standard of proof in case of all proceedings under the Act that the Court must be satisfied on a preponderance of probability that the ground for relief is proved and normally, the Court requires that the evidence of a spouse who charges the other spouse with a matrimonial offence should be corroborated. In the given case on hand, we are not able to find even a single piece of evidence relating to the allegation of cruelty and desertion to grant the relief of divorce as against the respondent.

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    Judgment C.M.A.No.1652 of 2015 Madras High cOurt -The Law Literates

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    13Jun, 2023
    Hindu Succession Act | Daughters Are Entitled To One-Third Of Properties Of Their Father-the Law Literates

    The Law Literates 

    PRASANTA SAHU vs CHARULATA SAHU & Ors CA 2913/23 29/03/23 [ A.S. BOPANNA JJ ]

    [ SUPREME COURT OF INDIA ]

    Senior Counsel R Basant appeared for the appellants, while Counsel V Chitambaresh and Counsel B Sunita Rao appeared for the respondents.

    In this case, the litigation related to the partition of ancestral properties between the appellants and the respondents.

    • Partition Act Section 4 Hindu Succession (Amendment) Act Hindu Succession Act Section 6 Suit for partition Claim of 1/3rd share by daughter in father’s property against defendant No. 1 (brother) and defendant No. 2 (sister) Decree by Trial Court and allowing of cross appeal and declaring compromise between original owner(dead) and sister as invalid Held, by virtue of preliminary decree passed by Trial Court, which was confirmed by Division Bench of High Court, issues decided therein will be deemed to have become final but as partition suit is required to be decided in stages, same can be regarded as fully and completely decided only when final decree is passed As law governing parties amended before conclusion of final decree proceedings, party benefitted by such amendment (like the two daughters in the case on hand) can make request to Trial Court to take cognizance of Amendment and give effect to same Hence, plaintiff daughter entitled to 1/3rd share in all properties of her Late father.

    80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

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    PRASANTA KUMAR SAHOO & ORS. Vs Charulata sahu Judgement_29-Mar-2023 (1) the law literates


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