IMPORTANT DECISIONS

 Additional evidence at appellate stage - Documents sought to be produced formed the very basis of the claim - Reason for not producing the same at the trial stated - Additional evidence allowed. 2010(1) Civil Court Cases 707 (S.C.)

 Additional evidence at appellate stage - Once it is proved that the decree is not appealable, application cannot be entertained. 2010(1) Civil Court Cases 797 (P&H)

 Admission - Admissible only when it is made during continuance of right. 2010(1) Civil Court Cases 686 (Allahabad)

 Affidavit - Notary before whom sworn not examined - Not a proof in accordance with law - No reliance can be placed thereon. 2010(1) Civil Court Cases 688 (S.C.)

 Counter claim - Amendment - Counter claim of declaration and possession of first floor - Dispossession from ground floor during pendency of suit - Amendment of counter claim allowed - 2003(3) Civil Court Cases 133 (Bombay) distinguished. 2010(1) Civil Court Cases 806 (Allahabad)

 Dishonour of cheque - Accused cannot be permitted to lead his evidence by way of affidavit. 2010(1) Civil Court Cases 669 (S.C.)

 Dishonour of cheque - Documents produced along with the affidavit - Affidavit can contain the formal proof of the enclosed documents - Accused can raise objections - If objections sustained then it is always open to the prosecution to have the concerned witness summoned and get the lacuna in the proof of documents corrected. 2010(1) Civil Court Cases 669 (S.C.)

 Dishonour of cheque - Evidence on affidavits - Cross examination of deponent - It cannot be insisted that deponent should first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. 2010(1) Civil Court Cases 669 (S.C.)

 Dishonour of cheque - Evidence on affidavits - Excluding inadmissible portion in affidavit - Not necessary to call deponent - Court on objection by accused can deal with the objections in accordance with law. 2010(1) Civil Court Cases 669 (S.C.)

 Dishonour of cheque - Loan advanced by husband and cheque issued in favour of wife - Husband not examined as a witness - Failure to prove fact of lending money and receipt of cheque by complainant towards discharge of loan amount - Accused acquitted - Order upheld. 2010(1) Civil Court Cases 661 (Karnataka)

 Hindu Law - A coparcener can sell his undivided share but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds. 2010(1) Civil Court Cases 598 (S.C.)

 Hire purchase agreement - Hypothecation of vehicle - Arbitration clause - Illegal seizure of vehicle - Suit for damages - Illegal seizure of vehicle not covered by arbitration clause - Matter cannot be referred to arbitrator. 2010(1) Civil Court Cases 726 (Kerala)

 Hire purchase agreement - Hypothecation of vehicle - Seizure of vehicle illegally - Suit for damages - Illegal seizure gives rise to criminal proceedings as well as to approach Civil Court for damages. 2010(1) Civil Court Cases 726 (Kerala)

 Maintenance pendente lite - Payable with interest @ 9% if not paid within a month. 2010(1) Civil Court Cases 658 (P&H)

 Mortgage - Redemption - Sale of interest of one mortgagor in favour of mortgagee - Co-mortgagor is entitled to seek redemption to the extent of his own share on making payment of proportionate part of amount. 2010(1) Civil Court Cases 744 (Bombay)

 Photostat copy - Neither primary nor secondary evidence - Original document is primary evidence and a copy thereof can be led as secondary evidence in accordance with the provisions of S.65 of Evidence Act. 2010(1) Civil Court Cases 810 (P&H)

 Pleadings - Court can strike out any pleading at any stage of the proceedings when pleadings are considered by Court unnecessary, scandalous, frivolous or vexatious or where the Court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise considered as an abuse of the court. 2010(1) Civil Court Cases 631 (S.C.)

 Receipt to extinguish the mortgage - Requires registration. 2010(1) Civil Court Cases 666 (M.P.) (DB)

 Rent deed executed after attachment of property - Invalid. 2010(1) Civil Court Cases 623 (Allahabad)

 Rent & Eviction - Shop - Personal need - Landlady aged 68 years - Mere advancement in age is no ground to dislodge the claim of a landlord that he needs the premises to start his own business. 2010(1) Civil Court Cases 610 (P&H)

 Run away marriage - Police protection - Marriage of a girl below 18 years and of a boy below 21 years if void - Police protection cannot be provided to a couple whose marriage is void. 2010(1) Civil Court Cases 748 (P&H)

 Suit u/s 92 CPC - State amendment whereby Court other than District Court also conferred jurisdiction - District Court and Court notified by State Govt. will have concurrent jurisdiction without reference to any pecuniary limits. 2010(1) Civil Court Cases 648 (S.C.)

 Witness - When deposes under instructions of a party and further his statement is merely a hearsay then the same cannot form the basis to record a finding. 2010(1) Civil Court Cases 701 (P&H)

SUBJECT INDEX

Advocates Act, 1961

 Advocates Act, 1961, S.34 & Rule 11 of Rules made by High Court of Punjab & Haryana - Change of counsel - Can be with consent of counsel already engaged - Consent if not produced then new counsel can apply to the Court stating the reasons why the said consent could not be produced and he could appear only after obtaining the permission of the Court. 2010(1) Civil Court Cases 644 (P&H)

 Advocates Act, 1961, S.34 - Change of counsel - Contract of vakalatnama can be withdrawn by client at any time and if the client has lost his confidence and faith in the advocate, he can terminate the vakalatnama and seek return of the file. 2010(1) Civil Court Cases 644 (P&H)

 Advocates Act, 1961, Ss.34 & 35 - Change of counsel - Unpaid fee - Advocate on termination of attorney has no lien over the litigation files for his unpaid fee - Refusal to return file to client amounts to misconduct - If Advocate has any genuine claim or grievance against his client the appropriate course is to return his brief with endorsement of no objection and fight for his rights as per law. 2010(1) Civil Court Cases 644 (P&H)

Agreement to sell

 Agreement to sell - Oral - Suit for specific performance - Part of consideration paid by way of black money - Trial Judge rightly not passed money decree against defendant Nos.1 to 3 as it was in violation of provision of S.23 of Contract Act - Court do not assist the person whose acts are not in consonance with the provisions of Law.(Specific Relief Act, 1963, S.14, Contract Act, 1872, S.23). 2010(1) Civil Court Cases 785 (Bombay)

 Agreement to sell - Oral - Suit for specific performance - Terms of oral agreement are required to be placed before the Court in the form of evidence.(Specific Relief Act, 1963, S.20). 2010(1) Civil Court Cases 785 (Bombay)

Arbitration and Conciliation Act, 1996

 Arbitration and Conciliation Act, 1996, S.8 - Hire purchase agreement - Hypothecation of vehicle - Arbitration clause - Illegal seizure of vehicle - Suit for damages - Held, illegal seizure of vehicle being the dispute is not a matter covered by the arbitration clause under the hypothecation agreement as such dispute cannot be referred to arbitrator. 2010(1) Civil Court Cases 726 (Kerala)

Civil Procedure Code, 1908

 Civil Procedure Code, 1908, S.9 - Hire purchase agreement - Hypothecation of vehicle - Seizure of vehicle illegally - Suit for damages - Seizure even if permitted under the terms of agreement, it can be done only lawfully and not otherwise - Illegal seizure of vehicle, which is opposed to public policy, over and above giving rise to criminal proceedings against the offender also enable the injured party to approach Civil Court for damages and Civil Court can entertain a civil suit. 2010(1) Civil Court Cases 726 (Kerala)

 Civil Procedure Code, 1908, S.9 - Jurisdiction - Cannot be decided only on the basis of reliefs claimed in the suit - Averments in plaint disclosing cause of action and reliefs sought for therein must be considered in their entirety. 2010(1) Civil Court Cases 726 (Kerala)

 Civil Procedure Code, 1908, S.34 - Suit for specific performance - Alternative relief of payment of earnest money granted - Interest payable at the rate of 12% from the date of execution of agreement till the date of passing of the decree - Future interest i.e. from date of passing of decree to date of realization will be 6% which will be payable on the principal amount as the transaction is not commercial. 2010(1) Civil Court Cases 724 (P&H)

 Civil Procedure Code, 1908, S.35-A - Costs - Vexatious application for rejection of plaint on the ground that suit is barred by law of limitation - Exemplary costs of Rs.10,000/- imposed. 2010(1) Civil Court Cases 655 (Karnataka)

 Civil Procedure Code, 1908, S.64 - Sale deed executed when attachment was continuing - Sale is void by virtue of S.64 CPC. 2010(1) Civil Court Cases 760 (Allahabad)

 Civil Procedure Code, 1908, S.64, O.21.R.96 - Rent deed executed after attachment of property - Invalid - Tenant is not entitled to occupy the premises and resist D.H. from taking actual possession in he garb of the fact that he cannot be evicted otherwise than in accordance with law - Tenant is liable to hand over vacant possession to D.H. and also to pay the entire rent. 2010(1) Civil Court Cases 623 (Allahabad)

 Civil Procedure Code, 1908, S.92 - State amendment whereby Court other than District Court also conferred jurisdiction u/s 92 CPC - Since the legislature has used the words 'or' whereby the suit could be instituted either in District Court or in any Court empowered by State Govt. which denotes an alternative, giving a choice - District Court and Court notified by State Govt. will have concurrent jurisdiction without reference to any pecuniary limits - Provision of a State Act specifying the pecuniary jurisdiction of Courts do not apply to a suit u/s 92 CPC. 2010(1) Civil Court Cases 648 (S.C.)

 Civil Procedure Code, 1908, S.92 - Suit u/s 92 CPC - Jurisdiction - State amendment notification whereby jurisdiction was conferred on Courts other than District Court - As per provision of S.92 of CPC suit can be instituted in District Court or in any Court empowered by State Government - Word 'or' denotes an alternative, giving a choice - Held, District Courts and Subordinate Court empowered by State Govt. have concurrent jurisdiction. 2010(1) Civil Court Cases 648 (S.C.)

 Civil Procedure Code, 1908, S.92 - To obtain leave for instituting a suit for the relief u/s 92 CPC - Where one of the relief sought fell outside the scope of suit is by itself not a sufficient ground to decline permission when some of the other reliefs sought fall under cls.(a) to (h) of S.92 CPC. 2010(1) Civil Court Cases 619 (Kerala)

 Civil Procedure Code, 1908, S.92 - To obtain leave for instituting a suit for the relief u/s 92 C.P.C. - Persons seeking leave to file suit need not show 'a direct interest' - However, their interest in Trust should be real, substantial and existing - Mere statement of being 'well wishers and beneficiaries' is not enough. 2010(1) Civil Court Cases 619 (Kerala)

 Civil Procedure Code, 1908, S.100 - Second appeal - New plea with regard to question of law can be raised for the first time in second appeal. 2010(1) Civil Court Cases 733 (S.C.)

 Civil Procedure Code, 1908, O.1.R.10 - Impleading of a party - Plaintiff claiming a lessee, filed suit in the year 2003 - Applicant claiming to be a lessee in the year 1992 - A valuable right had already accrued in favour of the applicant - Consequently any injunction granted by Court restraining the defendants and their agents or any person claiming through them would vitally affect the rights of the applicant - Order impleading applicant as a party upheld. 2010(1) Civil Court Cases 646 (Allahabad)

 Civil Procedure Code, 1908, O.3.Rr.1,2 - Power of attorney holder - Can depose on behalf of the principal in respect of those acts which he has rendered in pursuance of power of attorney but he cannot depose for the principal for the act done by the principal and not by him - Power of attorney cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 2010(1) Civil Court Cases 710 (Bombay) (DB)

 Civil Procedure Code, 1908, O.6.Rr.1, 2 - Proof beyond pleadings - Not admissible in evidence. 2010(1) Civil Court Cases 810 (P&H)

 Civil Procedure Code, 1908, O.6.R.16 - Pleadings - Power of Court to strike out - Additional written statement filed - Objection not taken by plaintiff - After about 3 years, plaintiff filed an applciaotn for striking off additional written statement - High Court allowed application - Order of High Court set aside - High Court was not at all justified in allowing the application and that too without even adverting to O.6.R.16 CPC. 2010(1) Civil Court Cases 631 (S.C.)

 Civil Procedure Code, 1908, O.6.R.17 - Counter claim - Amendment - Declaration and possession of first floor of house sought - Dispossession from ground floor during pendency of suit - Amendment of counter claim - Allowed - Whether defendant had been dispossessed recently or not would be in the nature of the claim of restitution, which will have to be proved through evidence and which is not barred by the provision of O.8.R.6-A of the Code - Nature of claim is more in he nature of an amendment as emphasized U.O.6.R.17 of the Code or the bringing of pleadings on record, which is otherwise permissible in O.8.R.9 of the Code - Amendment allowed. Case Ganu Vs Manik reported in 2003(3) Civil Court Cases 133, decided by Bombay High Court distinguished as it does not apply to the facts of the case. 2010(1) Civil Court Cases 806 (Allahabad)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Prayer for amendment must satisfy two conditions (i) that it is not causing injustice to the other side; and (ii) the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties. 2010(1) Civil Court Cases 579 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Subsequent events - After institution of suit defendant encroached upon the suit property and raised some construction by building walls and rooms on the suit property - By way of amendment relief of mandatory injunction sought for demolishing of walls and rooms built by defendant - Amendment allowed. 2010(1) Civil Court Cases 579 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Pleadings - Amendment can be allowed at any stage unless and until it is shown that the plea sought to be incorporated by way of amendment, was not in the knowledge of the plaintiff at the time of filing of the plaint or written statement. 2010(1) Civil Court Cases 600 (Allahabad)

 Civil Procedure Code, 1908, O.6.R.17 - Pleadings - Power of Court to strike out - Court can strike out any pleading at any stage of the proceedings when pleadings are considered by Court unnecessary, scandalous, frivolous or vexatious or where the Court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise considered as an abuse of the court. 2010(1) Civil Court Cases 631 (S.C.)

 Civil Procedure Code, 1908, O.7.R.11(d), S.151, Limitation Act, 1963, S.12(1), Art.19, General Clauses Act, 1897, S.10 - Promissory note - Suit for recovery - Limitation - In computing limitation date on which promissory note executed shall be excluded - Court holiday on the last day of limitation - Suit filed on the first day of opening of Courts - Held, suit is not barred by limitation. 2010(1) Civil Court Cases 655 (Karnataka)

 Civil Procedure Code, 1908, O.9.R.9 - Dismissal in default of earlier suit - Bar of fresh suit - Plea not raised in trial Court, first appellate court or in second appeal in the High Court - Cannot be permitted to be raised for the first time in Supreme Court. 2010(1) Civil Court Cases 588 (S.C.)

 Civil Procedure Code, 1908, O.12.R.6 - Judgment on admission - Admission comprehends admission in pleadings or otherwise, orally or in writing - Court to satisfy itself that all the elements which constitute admission are present before granting a decree - Admission should be unambiguous, clear and unconditional. 2010(1) Civil Court Cases 776 (Delhi)

 Civil Procedure Code, 1908, O.12.R.6 - Scope and object - Provision of O.12.R.6 CPC is intended to enable expeditious grant of decree where defendant has made admission in pleadings or otherwise, orally or in writing - Plaintiff need not wait for completion of trial - Object of such provision is to curtail the period for determination of disputes and to see that a decree on admission is passed without any unnecessary hindrance. 2010(1) Civil Court Cases 776 (Delhi)

 Civil Procedure Code, 1908, O.16.R.14 - Court witness - Court has discretion in the matter of summoning a person as a Court witness - However, such discretion has to be exercised judiciously. 2010(1) Civil Court Cases 697 (A.P.)

 Civil Procedure Code, 1908, O.21.R.10 - Execution - Passport of J.D. cannot be impounded in an execution proceeding on the apprehension raised by D.H. that J.D. is likely to leave the country and thus the decree holder would be deprived of realising the fruits of the decree. 2010(1) Civil Court Cases 774 (Kerala)

 Civil Procedure Code, 1908, O.21.R.26 - Execution - Mere pendency of writ petition does not amount to stay of execution proceedings - Unless and until a stay order is presented Executing Court is free to execute the decree. 2010(1) Civil Court Cases 743 (Allahabad)

 Civil Procedure Code, 1908, O.21.R.32 - Execution - Decree for perpetual prohibitory injunction - Prayer for damages - There can be no claim for damages in execution for enforcement of a decree for perpetual prohibitory injunction. 2010(1) Civil Court Cases 731 (Kerala)

 Civil Procedure Code, 1908, O.22.R.2-B, O.22.R.4(3), (4), (5) & (6) - (As in P&H) - Death of defendant who was served and defending the suit - In case of his death, it is duty of his legal representatives to come on record themselves and in the absence of the same, the suit does not abate and decree passed is a valid decree. 2010(1) Civil Court Cases 628 (P&H)

 Civil Procedure Code, 1908, O.23.R.3 - Appeal - Withdrawal of appeal and suit sought - Withdrawal of only appeal allowed - Court cannot split the statement in two parts - Order set aside - Matter remitted back for decision afresh in accordance with law. 2010(1) Civil Court Cases 782 (P&H)

 Civil Procedure Code, 1908, O.22.Rr.3, 11 - Death of plaintiff during pendency of appeal - Applicant seeking impleadment as L.R. on the basis of Will - Application rejected on considering certain part of the Will - Held, not proper - Applicant allowed to be impleaded as legal representative. 2010(1) Civil Court Cases 780 (Rajasthan)

 Civil Procedure Code, 1908, O.23.R.3, S.96(3) - Compromise decree - Appeal against consent decree is barred u/s 96(3) CPC. 2010(1) Civil Court Cases 797 (P&H)

 Civil Procedure Code, 1908, O.22.R.4 - Legal representatives - Can urge all contentions which the deceased could have urged except only those which were personal to the deceased - Legal representatives can set up their own independent title. 2010(1) Civil Court Cases 631 (S.C.)

 Civil Procedure Code, 1908, O.26.Rr.9, 10(3) - Second commission - If report of previous Commission is found unacceptable then without setting it aside, a second commission cannot be appointed - However when earlier report suffers from some deficiency which could be supplied by further enquiry then Court can direct same Commissioner or appoint a fresh Commissioner without setting aside previous report - Power can also be exercised by Appellate Court. 2010(1) Civil Court Cases 652 (Kerala)

 Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary injunction - Contract rescinded - Order rescinding contract whether ante dated, illegal, mala fide or genuine has to be gone through during trial - If the contract was wrongly rescinded, plaintiff will get adequate damages/compensation for wrongful recession of the contract - Held, injunction cannot be granted to bring the clock back and allow the plaintiff to complete the duration of the contract period. 2010(1) Civil Court Cases 788 (Allahabad)

 Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary mandatory injunction - Possession delivered in execution of decree - High Court in revision passed an interim order directing D.H. to redeliver possession to J.D. - As possession is delivered in execution of decree as such there is no question to pass interim mandatory injunction directing D.H. to redeliver possession to J.D. - However, this can be done only when a final order is passed by the High Court in the pending revision petition. 2010(1) Civil Court Cases 657 (S.C.)

 Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary injunction - Failure to prove prima facie case - Interim injunction cannot be granted even if balance of convenience is in his favour or that he will suffer irreparable loss and injury if injunction is not granted. 2010(1) Civil Court Cases 791 (S.C.)

 Civil Procedure Code, 1908, O.41.R.27 - Additional evidence at appellate stage - Documents sought to be produced formed the very basis of the claim and their consideration was necessary for just decision of the case - Reason for not producing the same at the time of trial was that original plaintiff died during pendency of suit and L.R's were not award of those documents - Additional evidence allowed. 2010(1) Civil Court Cases 707 (S.C.)

 Civil Procedure Code, 1908, O.41.R.27, S.151 - Additional evidence at appellate stage - Once it is proved that the decree is not appealable, application cannot be entertained. 2010(1) Civil Court Cases 797 (P&H)

 Civil Procedure Code, 1908, O.41.R.27, S.151 - Additional evidence at appellate stage - Permission sought to place on record certain documents - Held, without making out a case for additional evidence there is no provision under law by which the documents can be placed on record in second appeal. 2010(1) Civil Court Cases 727 (P&H)

Constitution of India

 Constitution of India, Articles 226 & 227 - Writ petition against order passed by civil court against which revision is not maintainable - High Court before exercising jurisdiction under Article 226 has to consider whether trial Court committed a jurisdictional error by refusing to exercise its jurisdiction or it was a case of failure on the part of trial Court to exercise the power vested in it or the order under challenge was vitiated by an error of law apparent on the face of the record, or there was violation of the rules of natural justice and further to consider whether there has been substantial failure of justice or manifest injustice caused on account of order passed by trial Court - If High Court is to exercise power under Article 227 then it should take note of the often quoted judgment reported in 2004(2) Apex Court Judgments 221 (S.C.). 2010(1) Civil Court Cases 631 (S.C.)

Consumer Protection Act, 1986

 Consumer Protection Act, 1986, S.23 - Medical negligence - Original record and X-Ray films filed but not sent to expert for his opinion due to negligence of Assistant Registrar - Application filed to this effect but rejected - Appellant not to suffer for negligence of Assistant Registrar - All original records be sent to the expert - Case be decided afresh after receipt of expert opinion. 2010(1) Civil Court Cases 604 (S.C.)

Court Fees Act, 1870

 Court Fees Act, 1870, S.7(iv)(c) - Sale deed - Court fee - Ad valorem Court Fee is payable only when consequential relief of cancellation of sale deed is required - Cancellation of sale deed as a consequential relief is required in case of sale deed is voidable and not in case when sale deed is void - In the instant case a declaration was sought that sale deed is void being result of fraud and that no consideration was paid and that plaintiff wanted to obtain loan and taking advantage of her advanced age and disability sale deed was obtained - Averments in plaint indicate that document is shown to be void and not voidable - Held, ad valorem court fee is not payable. 2010(1) Civil Court Cases 641 (M.P.) (DB)

Customary Law

 Customary Law - Meo tribe - Status of widow in the agricultural tribe of meos in the State of Punjab is not lower than that of karta of joint Hindu Family Property, who could also sell the joint coparcenary Hindu Family property for legal necessity - Karta cannot be restrained from alienating the coparcenary property - Sale can be challenged only after it is complete on the ground that the same was act of waste and was not for legal necessity.(Specific Relief Act,1963, Ss.37, 38, Civil Procedure Code, 1908, O.39.Rr.1,2.). 2010(1) Civil Court Cases 663 (P&H)

DNA Test

 DNA Test - Meaning - Deoxyribonucleic Acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual - DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on - Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders - The identification is hundred percent precise, experts opine. 2010(1) Civil Court Cases 688 (S.C.)

 DNA Test - Precautions required to be taken - Ensure preparation of high-molecular-weight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. 2010(1) Civil Court Cases 688 (S.C.)

East Punjab Urban Rent Restriction Act, 1949

 East Punjab Urban Rent Restriction Act, 1949, S.13(3)(a)(i) - Bonafide necessity - Landlady 80 years old and suffering from various diseases - There was no direct approach to her house - She had to climb up and down the stair case to reach her residential house - Held, need is bona fide - Contention that landlady is not suffering from any disease repelled as old age in itself is a disease. 2010(1) Civil Court Cases 717 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(3)(a)(i) - Bonafide necessity - Landlord is best judge in regard to his bona fide need and if he considers that existing accommodation is insufficient and requires better and more accommodation then the same has to be seen from the angle of the landlord and not from the view point of tenant - Opinion of tenant cannot be imported in it. 2010(1) Civil Court Cases 717 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(4) - Shop-cum-flat - Bonafide need - Landlady now aged 68 years of age - Mere advancement in age is no ground to dislodge the claim of a landlord that he needs the premises to start his own business. 2010(1) Civil Court Cases 610 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(4) - Shop-cum-flat - Bonafide need - Plea that landlord is to sell the building after getting it vacated - Where a landlord after getting the premises vacated on the ground of personal necessity does not use the same for his own use and occupation the tenant is entitled to apply to the Rent Controller for restoration of the possession of the rented premises. 2010(1) Civil Court Cases 610 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(4) - Shop-cum-flat - Bonafide need - Tenant cannot dictate his landlord regarding the needs and requirements of the landlord or how the landlord should adjust himself in this regard. 2010(1) Civil Court Cases 610 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(4) - Shop-cum-flat - Bonafide need - To start a business - Plea that landlord is not having experience of running the business - Rightly repelled by the Appellate Authority. 2010(1) Civil Court Cases 872 (P&H) 610

Evidence Act, 1872

 Evidence Act, 1872, S.3 - Witness - Appreciation of evidence - Witness when deposes under instructions of a party and further his statement is merely a hearsay then the same cannot form the basis to record a finding. 2010(1) Civil Court Cases 701 (P&H)

 Evidence Act, 1872, S.9 - Identification parade - Appellant remained admitted in hospital for 13 days - Holding of identification parade would not have served any purpose. 2010(1) Civil Court Cases 688 (S.C.)

 Evidence Act, 1872, S.18 - Admission - Admissible only when it is made during continuance of right. 2010(1) Civil Court Cases 686 (Allahabad)

 Evidence Act, 1872, S.45 - Expert opinion - Admissibility of expert evidence - Requirements are : (i) that the expert must be within a recognized field of expertise; (ii) that the evidence must be based on reliable principles, and (iii) that the expert must be qualified in that discipline. 2010(1) Civil Court Cases 604 (S.C.)

 Evidence Act, 1872, S.45 - Expert opinion - Real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. 2010(1) Civil Court Cases 604 (S.C.)

 Evidence Act, 1872, S.58 - Fact admitted need not be proved - Factum of residence of landlord on the back side of the premises in dispute, pleaded by landlord and admitted by tenant in written statement and tenant and his witnesses also so admitted in cross examination - There is no need to prove such fact either by ration card or identity card of Election Commissioner. 2010(1) Civil Court Cases 717 (P&H)

 Evidence Act, 1872, Ss.62, 63, 65 - Photostat copy - Neither primary nor secondary evidence - Original document is primary evidence and a copy thereof can be led as secondary evidence in accordance with the provisions of S.65 of Evidence Act. 2010(1) Civil Court Cases 810 (P&H)

 Evidence Act, 1872, S.67 - Affidavit - Notary before whom sworn not examined - Not a proof in accordance with law - No reliance can be placed thereon. 2010(1) Civil Court Cases 688 (S.C.)

Hindu Law

 Hindu Law - Coparcenary property - Right of Karta to alienate - Karta has a right to alienate the property for legal necessity as such he cannot be restrained from selling the same - Right to challenge alienation of coparcenary property is available only after sale is complete and no injunction could be granted.(Specific Relief Act, 1963, Ss.37, 38, Civil Procedure Code, 1908, O.39.Rr.1,2) 2010(1) Civil Court Cases 663 (P&H)

 Hindu Law - Joint Family Property - Agricultural land of coparceners/co-sharers - Sale of - Sale of undivided share of a coparcener/co-sharers is unlaw/illegal when various statutes put an embargo on fragmentation of holdings below the prescribed extent. 2010(1) Civil Court Cases 598 (S.C.)

 Hindu Law - Joint Family Property - Undivided share of a co-parcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers. 2010(1) Civil Court Cases 598 (S.C.)

Hindu Marriage Act, 1955

 Hindu Marriage Act, 1955, S.13 - Divorce - Cruelty - Initiation of criminal proceedings against husband and his family members - Husband and his family members were acquitted on the ground that case was totally false - Held, mere initiation of criminal proceedings do not amount to cruelty - However, false allegations which result in prosecution of husband and his family members certainly amount to mental cruelty - Decree of divorce granted by trial Court, upheld. 2010(1) Civil Court Cases 614 (P&H)

 Hindu Marriage Act, 1955, S.13(1)(ia) - Cruelty - Asking wife to wear a particular type of clothes or compelling her to take wine or alcohol and compelling wife that she should mix up with friends etc. but wife not willing for the same - Husband taking photograph of wife in such dress against her wish and uploaded the photographs in different websites - It is cruelty - Decree of divorce granted. 2010(1) Civil Court Cases 710 (Bombay) (DB)

 Hindu Marriage Act, 1955, S.13(1)(ia) - Divorce - Cruelty - Temperamental nature of a spouse by itself is not sufficient to establish cruelty in the absence of any specific instances from which it could be inferred that this temperamental flaw was so disturbing that it would constitute cruelty towards the other spouse. 2010(1) Civil Court Cases 813 (Bombay) (DB)

 Hindu Marriage Act, 1955, S.13(1)(ib) - Divorce - Desertion - Both factum of physical separation and animus deserendi i.e. intention to end cohabitation, must be proved to establish desertion. 2010(1) Civil Court Cases 813 (Bombay) (DB)

 Hindu Marriage Act, 1955, S.13(1)(i)(b) - Divorce - Desertion - Decree granted by Court having no territorial jurisdiction - Objection with regard to territorial jurisdiction not taken in trial Court - Objection cannot be taken in appeal for the first time unless prejudice was caused to the aggrieved party. 2010(1) Civil Court Cases 701 (P&H)

 Hindu Marriage Act, 1955, S.24 - Maintenance pendente lite and litigation expenses - Payable with interest at the rate of 9% per annum from the date of passing of the order of maintenance in case maintenance amount and litigation expenses are not paid within a period of one month - Award of interest is compensatory in nature - Award of interest cannot be faulted and cannot be said to be illegal or perverse. 2010(1) Civil Court Cases 658 (P&H)

 Hindu Marriage Act, 1955, S.24 - Maintenance pendente lite - Date from which payable - Can be either from the date of (i) filing of divorce petition; (ii) from the date of filing of maintenance application or (iii) from the date of order of maintenance - It is discretion of Court - Discretion vested in the Court is to be exercised according to judicial conscious and fair play and to meet the ends of justice and not in an arbitrary or whimsical manner. 2010(1) Civil Court Cases 658 (P&H)

 Hindu Marriage Act, 1955, S.24 - Maintenance pendente lite - Wife settled in Canada - Evidence that she is earning sufficient amount not produced - Mere living in Canada does not mean that she was earning sufficient amount - Order granting maintenance of Rs.2,000/- p.m. to wife and Rs.1000/- per month to minor child and Rs.5,000/- as litigation expenses, upheld. 2010(1) Civil Court Cases 781 (P&H)

Interim orders

 Interim orders - Merge in the final order and after final decision/disposal of the case in whatever manner it may be, interim orders passed therein do not remain in existence - If a case is dismissed either on merit or otherwise, anything done under interim order passed therein will have to be reversed unless the judgment finally deciding the case, such actions are saved. 2010(1) Civil Court Cases 760 (Allahabad)

Limitation Act, 1963

 Limitation Act, 1963, S.3 - Limitation - No suit can be filed beyond the period of limitation - Suit filed beyond limitation is liable to be dismissed even when objection of limitation is not taken by defendant as defence. 2010(1) Civil Court Cases 582 (Rajasthan)

 Limitation Act, 1963, Ss.3, 18 - Limitation - Once starts to run, it is not stopped - It can be extended by acknowledgment in writing u/s 18 of the Act - In case of accounts, recovery of debt or interest in legacy, if payment is made, on account of debt or of interest on a legacy, made by the person liable to pay the debt or legacy or by the authorised agent, then fresh period of limitation has to be computed from the time when such payment was made - Certain time can be excluded from the period of limitation for which there are separate provisions made in Part III of the Act. 2010(1) Civil Court Cases 582 (Rajasthan)

 Limitation Act, 1963, S.17 - Fraud - Limitation begins to run from the date when fraud becomes known to the plaintiff - Knowledge referred to in the provision should be clear and definite knowledge of the facts constituting the particular fraud and not a mere suspicion - Fraud and date when the fraud pleaded came to knowledge must be pleaded. 2010(1) Civil Court Cases 802 (Delhi)

 Limitation Act, 1963, S.58 - Suit for declaration - Limitation is three years from the date when the right to sue accrues first - Right to sue arises when defendant actually tries to assert his right and interferes with the possession of the plaintiff and not when defendant is successful in getting the property in his name. 2010(1) Civil Court Cases 802 (Delhi)

 Limitation Act, 1963, Art.5 - Partnership firm - Suit for rendition of account and share of profit of a dissolved partnership firm - Suit can be filed within three years from the date of dissolution of the firm. 2010(1) Civil Court Cases 582 (Rajasthan)

 Limitation Act, 1963, Art.58 - Suit for declaration - Limitation is three years - Period of three years starts to run from the date when the right to sue first accrues and not on subsequent dates even if cause of action arises on subsequent occasions as well - Right to sue arises where there is clear or unequivocal threat - Computation of period of limitation has to be done by tracking it back to the time when the right to sue accrued for the first time. 2010(1) Civil Court Cases 802 (Delhi)

Negotiable Instruments Act, 1881

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Account closed - Cheque comes within the sweep of S.138 NI Act. 2010(1) Civil Court Cases 592 (Kerala)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Dismissal of complaint for default - For one singular default in appearance on the part of the complainant it is not proper to dismiss the complaint - Complaint restored. 2010(1) Civil Court Cases 660 (Bombay)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Loan advanced by husband and cheque issued in favour of wife - Husband not examined as a witness - Failure to prove fact of lending money and receipt of cheque by complainant towards discharge of loan amount - Accused acquitted - Order upheld. 2010(1) Civil Court Cases 661 (Karnataka)

 Negotiable Instruments Act, 1881, S.138, Indian Penal Code, 1860, S.417, Criminal Procedure Code, 1973, S.216 - Revision against conviction u/s 417 IPC - Offence found to be committed u/s 138 Negotiable Instruments Act - Offence u/s 417 IPC altered and accused held guilty u/s 138 NI Act - Keeping in view the long continuation of proceedings accused sentenced to undergo imprisonment till the rising of the Court and to pay compensation of Rs.60,000/- to the complainant. 2010(1) Civil Court Cases 592 (Kerala)

 Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Presumption is as to issuance of cheque for discharge of any debt or other liability and not as to legally recoverable debt - Complainant has to be establish as to legally recoverable debt. 2010(1) Civil Court Cases 661 (Karnataka)

 Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Presumption - Loan advanced by husband and cheque issued in favour of wife - Husband not examined - Failure to prove lending of money and that accused delivered the cheque to the complainant - Presumption u/s 139 of the Act is not available. 2010(1) Civil Court Cases 661 (Karnataka)

 Negotiable Instruments Act, 1881, Ss.138, 141 - Dishonour of cheque - Company - Vicarious liability of Director - Nothing to show how petitioner was incharge and responsible for conduct of business of company in question - Documents produced on record by petitioner do not show that he was Director of Company at the time when cheque was issued - Document issued by Registrar of Companies shows three Directors at relevant time but name of petitioner does not appear in list of three Directors - Complainant against petitioner quashed. 2010(1) Civil Court Cases 684 (Delhi)

 Negotiable Instruments Act, 1881, Ss.138, 143 to 147 - Dishonour of cheque - Provisions of Ss.143 to 147 which came into effect from 6.2.2003 apply to the cases which were pending on the date the provisions came into force. 2010(1) Civil Court Cases 669 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 143 to 147 - Dishonour of cheque - Ss.143, 144, 145 & 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials - The provisions of S.146 similarly depart from the principles of Indian Evidence Act. 2010(1) Civil Court Cases 669 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 145 - Dishonour of cheque - Accused cannot be permitted to lead his evidence by way of affidavit. 2010(1) Civil Court Cases 669 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 145(1) & 145(2) - Dishonour of cheque - Documents produced along with the affidavit - Affidavit can contain the formal proof of the enclosed documents - However, if accused raises any objection with regard to the validity or sufficiency of proof of the documents submitted alognwith the affidavit and if the objections are sustained by the Court it is always open to the prosecution to have the concerned witness summoned and get the lacuna in the proof of the documents corrected. 2010(1) Civil Court Cases 669 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 145(2), Criminal Procedure Code, 1973, S.296(2) - Dishonour of cheque - Provisions of S.296(2) Cr.P.C. and S.145(2) Negotiable Instruments Act are not identical - Provision of S.296(2) Cr.P.C. deals with the evidence of a formal nature whereas provision of S.145(2) NI Act all evidences including substantive evidence may be given on affidavit - S.296 Cr.P.C. is part of the elaborate procedure of a regular trial under the Code while the whole object of S.145(2) NI Act is to design a much simpler and swifter trial procedure departing from the elaborate and time consuming trial procedure of the Code. 2010(1) Civil Court Cases 669 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 145(2) - Dishonour of cheque - Evidence on affidavits - In the event an application is made by the accused, Court would be obliged to summon the person giving evidence on affidavit without having any discretion in the matter - Witness can be subjected to cross examination as to the facts stated in the affidavit - However, when the person who has given his evidence on affidavit appears in Court it is not open to the accused to insist that before cross examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. 2010(1) Civil Court Cases 669 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 145(2) - Dishonour of cheque - Evidence on affidavits - It is not necessary to call the complainant or his witness who has given evidence on affidavit into the witness box for examination-in-chief to get the inadmissible portions in the affidavit excluded from his evidence - In case the complainant's affidavits contain statements that are not admissible in evidence it is always open to the accused to point those out to the court and the court would then surely deal with the objections in accordance with law. 2010(1) Civil Court Cases 669 (S.C.)

Partnership Act, 1932

 Partnership Act, 1932, S.4 - Partnership - There cannot be a partnership firm without there being at least two persons contracting to do business. 2010(1) Civil Court Cases 582 (Rajasthan)

 Partnership Act, 1932, S.41(b) - Partnership - Two partners - When one partner retires then it amounts to dissolution of the partnership. 2010(1) Civil Court Cases 582 (Rajasthan)

 Partnership Act, 1932, S.42(c) - Partnership - Two partners - Death of one partner - Firm stands dissolved despite the existence of a clause in the deed that partnership will continue for 42 years irrespective of the death of any partner - A partnership is a contract between the partners - There cannot be any contract unilaterally without the acceptance by the other partner - There is no legal obligation on L.R's to join partnership as partnership is not a matter of heritable status but purely one of contract. 2010(1) Civil Court Cases 733 (S.C.)

 Partnership Act, 1932, Ss.42, 48 - Partnership - Both the partners brining properties into partnership - No intention of partners to treat those properties as the properties of the firm - Partnership firm stood dissolved on death of one partner - Both the partners allowed to take their respective properties. 2010(1) Civil Court Cases 733 (S.C.)

Prohibition of Child Marriage Act, 2006

 Prohibition of Child Marriage Act, 2006, Ss.10, 11, 15 - Marriage of a girl below 18 years of age and a boy below 21 years of age is a child marriage and is void within meaning of S.12 of the act - Any person who performs, conducts or directs or abets any child marriage is liable for punishment and such offence is cognizable and non bailable - State directed to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage.(Prohibition of Child Marriage Act, 2006, Ss.10, 11, 12 & 15). 2010(1) Civil Court Cases 748 (P&H)

 Prohibition of Child Marriage Act, 2006 - Applicability of the Act to the State of Punjab - It is a Central Act which has come into force on 1.11.2007 and extends to the whole of India except the State of Jammu and Kashmir - Held, this Act is applicable to the Sate of Punjab being a Central Act and no separate notification is required to be issued, by the State of Punjab, in this regard. 2010(1) Civil Court Cases 748 (P&H)

Protection of Women From Domestic Violence Act, 2005

 Protection of Women From Domestic Violence Act, 2005, Ss.12 & 23, Protection of Women From Domestic Violence Rules, 2006, R.12 - Reliefs provided under the Act are civil in nature - Notice of application u/s 12 or an application u/s 23 should be served in Form VII. 2010(1) Civil Court Cases 765 (Kerala)

 Protection of Women From Domestic Violence Act, 2005, Ss.13, 12 & 23, Protection of Women From Domestic Violence Rules, 2006, R.12(2)(c) - Notice of application u/s 12 or an application u/s 23(1) should be accompanied by copy of respective application. 2010(1) Civil Court Cases 765 (Kerala)

 Protection of Women From Domestic Violence Act, 2005, S.23(1) - Final order u/s 23(1) of the Act can only be passed after service of notice on the respondent. 2010(1) Civil Court Cases 765 (Kerala)

 Protection of Women From Domestic Violence Act, 2005, S.23(1) & (2), Protection of Women From Domestic Violence Rules, 2006, R.12(3) - Rule 12(3) pertains only to the final order passed u/s 23(1) of the Act and not to the ad interim order passed u/s 23(2) of the Act. 2010(1) Civil Court Cases 765 (Kerala)

 Protection of Women From Domestic Violence Act, 2005, S.23(2) - Ex parte order without notice - Magistrate on satisfaction of a prima facie case that respondent is committing an act of domestic violence, can grant an exparte order without notice, on the basis of an affidavit of the aggrieved person in the prescribed form. 2010(1) Civil Court Cases 765 (Kerala)

 Protection of Women From Domestic Violence Act, 2005, S.23(2) - Exparte ad interim order - Magistrate shall take necessary care and caution while passing ex parte ad interim orders - Indiscriminate passing of ad interim ex parte orders deprecated. 2010(1) Civil Court Cases 765 (Kerala)

Registration Act, 1908

 Registration Act, 1908, S.17 - Receipt to extinguish the mortgage - Requires registration. 2010(1) Civil Court Cases 666 (M.P.) (DB)

 Registration Act, 1908, S.49 - Unregistered, unstamped document - Unregistered document can be looked into for collateral purposes - However, in case of document not being stamped, it cannot be admitted in evidence. 2010(1) Civil Court Cases 666 (M.P.) (DB)

Right to Information Act, 2005

 Right to Information Act, 2005, Ss.2(f), 6 - Information - Meaning - A person can get any information which is already in existence and accessible to the public authority under law and is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. 2010(1) Civil Court Cases 771 (S.C.)

 Right to Information Act, 2005, S.6 - Information - Judicial orders - Reasons for arriving at a particular decision - No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion - A judge is not obliged to give any reasons as to why he had taken such a decision in the matter which was before him and is not expected to give reasons other than those that have been enumerated in the judgment or order. 2010(1) Civil Court Cases 771 (S.C.)

Run away marriage

 Run away marriage - Police protection - Girl aged 16 years 2 months at the time of marriage - As per S.3 of Majority Act, 1875 every person domiciled in India attains the age of majority on his completing the age of eighteen years and not before - Girl who has not attained the age of 18 years is a child within meaning of S.2(a) of the Prohibition of Child Marriage Act, 2006 - Marriage of a girl who has not attained 18 years of age is a child marriage within the meaning of S.2(b) of Prohibition of Child Marriage Act - Thus marriage of a girl who has not attained the age of majority on the date of marriage is void as per S.12 of the Prohibition of Child Marriage Act, 2006 which came into force on 1.11.2007 - Marriage declared void. 2010(1) Civil Court Cases (Majority Act, 1875, S.3, Prohibition of Child Marriage Act, 2006, Ss.2(a), 2(b), 12). 2010(1) Civil Court Cases 748 (P&H)

 Run away marriage - Police protection - Girl aged 16 years 2 months at the time of marriage - Marriage of a girl who was below 18 years of age on the date of marriage is void as per provision of S.2(a) and 12 of Prohibition of Child Marriage Act, 2006, which came into force on 1.11.2007 - Police protection cannot be provided to a couple whose marriage is void.(Prohibition of Child Marriage Act, 2006, Ss.2(a), 2(b), 12). 2010(1) Civil Court Cases 748 (P&H)

Statutes

 Statutes - Interpretation - Provision of a statute should be read as it is without adding, substituting or omitting any words - Words in the statute should be assigned and ascribed their natural, ordinary or popular meaning - Only when such plain and straight reading, or ascribing the natural and normal meaning to the words leads to ambiguity, vagueness, uncertainty, or absurdity then Court should open its interpretation tool kit containing the settled rules of construction and interpretation to arrive at the true meaning of the provision. 2010(1) Civil Court Cases 648 (S.C.)

Suspicion

 Suspicion - A strong suspicion or that in all probabilities the accused was guilty of commission of heinous offence, would by itself not a substitute for proof. 2010(1) Civil Court Cases 688 (S.C.)

Transfer of Property Act, 1882

 Transfer of Property Act, 1882, S.60 - Mortgage - Redemption - Co-mortgagor selling his interest in the property to the mortgagee - Co-mortgagor is entitled to seek redemption to the extent of his own share on making payment of proportionate part of amount. 2010(1) Civil Court Cases 744 (Bombay)

Will

 Will - First Will registered and second Will unregistered - Testator had sufficient time of almost 20 months to get the Will registered - Held, this is a suspicious circumstance. 2010(1) Civil Court Cases 757 (P&H)

 Will - Registration - Registration of a Will is not compulsory yet registration of a Will goes a long way in establishing the genuineness of the Will. 2010(1) Civil Court Cases 757 (P&H)

 Will - Testator performed second marriage as no child was born from the first wife - Relations between testator and first wife must have deteriorated - Possibility of execution of Will in favour of first wife is remote - Renders the Will a suspicious document. 2010(1) Civil Court Cases 757 (P&H)

Wrong provision of law

 Wrong provision of law - Quoting wrong provision in the title of an application is never fatal. 2010(1) Civil Court Cases 686 (Allahabad)