CIVIL COURT CASES - OCTOBER, 2009

Email: civilreports@hotmail.com
Website: lawmirror.com

Postal Regd.No.CHD/0018/08-10.
Annual Subsc. (Four Vols.) Rs.1360/-

CIVIL COURT CASES
(Registered with Registrar of Newspapers for India, R.No.46591/87)
Reporting latest civil judgments of S.C. & All the High Courts of India

Now Law also available in Electronic Media

Vol.58

October, 2009

Part 10

Pages : 1 to 304

IMPORTANT DECISIONS

Agreement to sell - Does not require registration when possession is not delivered at the time of execution of agreement to sell. 2009(4) Civil Court Cases 025 (P&H)

Agreement to sell - Oral - Cheque of 4 lacs - No receipt obtained - Court cannot even prima facie frame an opinion that there was any such agreement - Merely because cheque payment of Rs.4 lacs is admitted does not help the plaintiffs. 2009(4) Civil Court Cases 164 (Delhi)

Bandh/agitation/hartal - Destruction of property - Preventive action - Assessment of damages - Guidelines. 2009(4) Civil Court Cases 083 (S.C.)

Clean hands - A person not coming to Court with clean hands is not entitled to injunction. 2009(4) Civil Court Cases 302 (P&H)

Comparison of signatures from photocopy - Cannot be compared. 2009(4) Civil Court Cases 110 (P&H)

Correction of decree - Trial Court can allow amendment of plaint and correction of judgment and decree of clerical and arithmetical mistake even when decision obtained finality before High Court. 2009(4) Civil Court Cases 200 (P&H)

Defendant in a previous proceeding can also invoke S.14 of Limitation Act. 2009(4) Civil Court Cases (DB) 202 (Kerala)

Dishonour of cheque - Default sentence of imprisonment can be imposed for non payment of compensation. 2009(4) Civil Court Cases 114 (S.C.)

Dishonour of cheque - Jurisdiction - Court within whose jurisdiction the cheque was merely presented for realisation has no territorial jurisdiction to try the offence. 2009(4) Civil Court Cases 125 (Bombay)

Dishonour of cheque - Memo of dishonour - If a memo, bearing official mark denoting reason of dishonour is produced, Court is bound to presume that the cheque has been dishonoured for the reason stated in the memo. 2009(4) Civil Court Cases 138 (Kerala)

Divorce - Decree of restitution of conjugal rights obtained by wife and wife not taking steps to get the decree implement for 11-12 years - It is the wife who had caused mental cruelty to the husband. 2009(4) Civil Court Cases 145 (P&H)

Encroachment - In case there are undisputed boundaries then encroachment is a matter of fact - Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment. 2009(4) Civil Court Cases 014 (Bombay)

If tenant is forcibly dispossessed landlord is entitled to file suit u/s 6 of the Act. 2009(4) Civil Court Cases 233 (Bombay)

Interest - Bank - Overdraft facility - Pendente lite and future interest allowed at the rate of 9% which is just, proper and reasonable. 2009(4) Civil Court Cases 133 (S.C.)

Nomination - It is the hand which is authorised to receive the amount - - Property or the amount can be claimed by the heirs of the deceased, in accordance with the law of succession, governing them. 2009(4) Civil Court Cases 077 (S.C.)

Replication - Can be filed only with leave of the Court which can be obtained orally also. 2009(4) Civil Court Cases 191 (Allahabad)

Sale - By co-sharer - An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds. 2009(4) Civil Court Cases 259 (S.C.)

Sale deed - Unilateral cancellation - Not permissible. 2009(4) Civil Court Cases 223 (Madras)

Specific performance - When a decree for compensation can be granted as an alternative, the specific performance shall not be granted. 2009(4) Civil Court Cases (D.B.) 207 (Bombay)

Summons - Cannot be served through registered post when defendant resides outside territorial jurisdiction of Court - However he can be served either by speed post, courier service, fax message or email but not by registered post. 2009(4) Civil Court Cases 157 (H.P.)

Summons - Service of - Service of summons without being accompanied by a copy of plaint - No service of summons as required by O.5.R.2 CPC. 2009(4) Civil Court Cases 290 (Allahabad)

Telephone - Dispute regarding telephone bills - Consumer complaint - Not maintainable. 2009(4) Civil Court Cases 001 (S.C.)

Temporary injunction - Restraining further construction - Construction of considerable magnitude already made - Order refusing to grant injunction, upheld. 2009(4) Civil Court Cases 176 (S.C.)

Temporary injunction - Specific performance - Restraining defendant from dealing with his property - While granting injunction condition can be imposed on plaintiff that in case he fails in his suit he will pay to defendant the difference between the agreed price and present market value of the property. 2009(4) Civil Court Cases 172 (Delhi)

Written statement - Co-defendant has a right to challenge or oppose the amendment sought by other defendant. 2009(4) Civil Court Cases 263 (Bombay)

SUBJECT INDEX

Adverse possession

Adverse possession - Co-sharer - If a co-sharer remains in adverse possession for a period of 12 years, which is definitely hostile to the plaintiff, right of co-sharer become extinct. 2009(4) Civil Court Cases 034 (Allahabad)

Agreement to sell

Agreement to sell - Does not require registration when possession is not delivered at the time of execution of agreement to sell. 2009(4) Civil Court Cases(Registration Act, 1908, S.17). 2009(4) Civil Court Cases 025 (P&H)

Agreement to sell - Oral agreement - Subsequent agreement to sell in favour of tenant - A purchaser before purchasing makes some investigation - A prudent purchaser enquires from the tenant in possession - Such enquires if made had revealed the agreement to sell to tenant - Such facts not mentioned by plaintiff - Such conduct of plaintiff is repugnant to the plea of oral agreement. 2009(4) Civil Court Cases 164 (Delhi)

Agreement to sell - Oral - Cheque amount of Rs.4 lacs alleged to be paid - Controverted as payment towards purchase of jewellery - No evidence as to sale of jewellery - Not a case of plaintiff that owner enjoyed any position of trust qua the plaintiffs - A person entering into an agreement to purchase property and who is parting with consideration by way of cheque or cash is at least to take an acknowledge or receipt of the same - In absence thereof Court cannot even prima facie frame an opinion that there was any such agreement - Merely because cheque payment of Rs.4 lacs is admitted does not help the plaintiffs. 2009(4) Civil Court Cases 164 (Delhi)

Agreement to sell - Registration - Plaintiff already in possession of suit land as tenant - Agreement to sell does not require registration. 2009(4) Civil Court Cases. 2009(4) Civil Court Cases 025 (P&H)

Agreement to sell - Registration - Recital in agreement that possession of suit land is delivered - In absence of evidence that possession was delivered at the time of execution of agreement to sell it cannot be held merely on the basis of recital in the agreement that possession is proved to be delivered. 2009(4) Civil Court Cases. 2009(4) Civil Court Cases 025 (P&H)

Agreement to sell - Specific performance - Alternative relief - Court can grant alternative relief when it finds that alternative relief would be equitable. (Registration Act, 1908, S.17) 2009(4) Civil Court Cases 068 (P&H)

Bandh/agitation/hartal

Bandh/agitation/hartal - Destruction of property - Damages - Assessment - In absence of legislation, the following guidelines are to be adopted to assess damages: (I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto; (II) Where there is more than one state involved, such action may be taken by the Supreme Court; (III) In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability; (IV) An Assessor may be appointed to assist the Claims Commissioner; (V) The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage; (VI) The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established; (VII) The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme Court as the case may be; (VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid; (IX) Damages shall be assessed for : (a) damages to public property; (b) damages to private property; (c) damages causing injury or death to a person or persons; (d) Cost of the actions by the authorities and police to take preventive and other actions; (X) The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties. 2009(4) Civil Court Cases 083 (S.C.) (Registration Act, 1908, S.17)

Bandh/agitation/hartal - Destruction of property - Preventive action - Guidelines - (I) The organizer shall meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest; (II) All weapons, including knives, lathis and the like shall be prohibited; (III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction; (IV) The police and State Government shall ensure videograph of such protests to the maximum extent possible; (V) The person in charge to supervise the demonstration shall be the SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district; (VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question; (VII) The police shall immediately inform the State Government with reports on the events, including damage, if any, caused; (VIII) The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or Supreme Court as the case may be for the Court in question to take suo motu action. 2009(4) Civil Court Cases 083 (S.C.)

Bandh/agitation/hartal - Destruction of property - Role of media in reporting news - Suggestions made by Committee set up by S.C. to explore modalities to prevent destruction of public/private property - Constitute sufficient guidelines which media needs to adopt - However, Court did not issue any positive direction for their implementation. 2009(4) Civil Court Cases 083 (S.C.)

Civil Procedure Code, 1908

S.9 - Jurisdiction of Civil Court - Partition of agricultural land duly recorded in revenue record - Cannot be challenged in Civil Court, as it is within the jurisdiction of the revenue Courts - Civil Court had no jurisdiction to opine as to whether partition was fair or not - Even otherwise, once the property is held to be non-ancestral, plaintiff has no locus standi to challenge the partition. 2009(4) Civil Court Cases 282 (P&H)

S.34 - Interest - Bank - Overdraft facility - Pendente lite interest allowed 25% and thereafter 19.4% interest allowed till realisation - Held, exorbitant - Pendente lite and future interest allowed at the rate of 9% which is just, proper and reasonable. 2009(4) Civil Court Cases 133 (S.C.)

S.47 - Execution - Condition of deposit - Executing Court has no right to extend the time for deposit - When condition of deposit is not complied with within the time stipulated then Executing Court has no alternative but to give effect to the consequences of default. 2009(4) Civil Court Cases 292 (Bombay)

S.47 - Execution - Executing Court cannot set aside the decree on ground of any illegality or that it is vitiated by errors of procedure - An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. 2009(4) Civil Court Cases 292 (Bombay)

S.47 - Execution - Jurisdiction of Executing Court - Limited and narrow - Cannot be equated with that of an Appeal or Review. 2009(4) Civil Court Cases 292 (Bombay)

S.96 - First appeal - First Appellate Court should deal with questions of fact as well as law - It is the primary duty of the appellate Court to discuss and analyze evidence with respect to each and every point urged and whether it supports the case of the appellant or defendant - It is not merely sufficient to reproduce the evidence and then summarize it to say that it supports a particular conclusion - The findings and the conclusions have to be co related and not arrived at on a general surmise. 2009(4) Civil Court Cases 012 (H.P.)

S.100 - Scope - (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. 2009(4) Civil Court Cases 045 (S.C.)

S.100 - Second appeal - Scope - Drastically curtailed after amendment in 1976 - High Court has jurisdiction to interfere only in a case where substantial question of law is involved and those questions are clearly formulated in the memorandum of appeal - At the time of admission of second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only High Court is permitted to proceed with the case to decide those questions of law. 2009(4) Civil Court Cases 045 (S.C.)

S.152, O.6.R.17 - Correction of decree - Clerical or arithmetical mistake - Trial Court can allow amendment of plaint and correction of judgment and decree of clerical and arithmetical mistake even when decision obtained finality before High Court - Principles governing amendment of decree and that of correction of accident slip or omission or an arithmetical mistake are different - Order allowing amendment, upheld. 2009(4) Civil Court Cases 200 (P&H)

O.1.R.10 - Impleading of party - Purchase of property from one of the co-sharer during pendency of suit for partition - Held, purchaser can get himself impleaded as a party in the suit. 2009(4) Civil Court Cases 032 (Orissa)

O.1.R.10 - Transposition of a party - Court can, if necessary, even act suo motu either U.O.1.R.10 CPC or in its inherent jurisdiction and order transposition of a party. 2009(4) Civil Court Cases 008 (P&H)

O.5.R.2 - Summons - Service of - Service of summons without being accompanied by a copy of plaint - No service of summons as required by O.5.R.2 CPC. 2009(4) Civil Court Cases 290 (Allahabad)

O.5.Rr.2, 9 - Summons - Service of summons - Envelope not containing copy of plaint - Trial Court itself opened the envelope which did not contain the copy of the plaint or the summons and infact a blank envelope was sent - Does not amount to service of summons. 2009(4) Civil Court Cases 290 (Allahabad)

O.5.R.9 - Summons - Service - There cannot be deemed service of summons on the sole ground that other defendants are brothers of the petitioner who had appeared in the suit. 2009(4) Civil Court Cases 290 (Allahabad)

O.5.Rr.9(4), 19 - Summons - Service by post - Defendant residing outside the territorial jurisdiction of Court - Court cannot issue summons by registered post acknowledge due to a defendant residing outside territorial jurisdiction of Court - However, a defendant residing outside the territorial jurisdiction of Court can be served either by speed post, courier service, fax message or email but not by registered post. 2009(4) Civil Court Cases 157 (H.P.)

O.5.Rr.9(4), 19 - Summons - Service by post - Summons sent to a defendant living outside the territorial jurisdiction of Court even if refused to be accepted cannot be deemed to be proper service as summons to a defendant living outside the territorial jurisdiction of Court cannot be sent by registered post. 2009(4) Civil Court Cases 157 (H.P.)

O.6.R.17 - Plaint - Amendment - Can be allowed even when trial has commenced if Court comes to the conclusion that in spite of due diligence a party could not have raised the matter before commencement of the trial. 2009(4) Civil Court Cases 066 (Delhi)

O.6.R.17 - Plaint - Amendment - Subsequent event - Suit for passing off trade mark - Relief of infringement sought by way of amendment as Trade Mark was registered - Plaintiff wanted to bring on record subsequent event - Amendment sought necessary for adjudication of matter in controversy between the parties - Amendment would also prevent multiplicity of litigation between the parties - Amendment allowed. 2009(4) Civil Court Cases 066 (Delhi)

O.6.R.17 - Written statement - Amendment - Admission - Cannot be withdrawn but at the most can be explained. 2009(4) Civil Court Cases 263 (Bombay)

O.6.R.17 - Written statement - Amendment - Co-defendant has a right to challenge or oppose the amendment sought by other defendant. 2009(4) Civil Court Cases 263 (Bombay)

O.6.R.17 - Written statement - Amendment - Co-defendant seeking amendment of written statement after 13 years of filing of the written statement on the ground that written statement was not drafted properly at the instance of other defendant - It is not possible that defendant did not know the contents of the written statement for 13 years - It is difficult to accept that without reading he had signed the written statement - Delay not explained - Proposed amendment to withdraw the admission - Amendment sought only to resile from what is stated in the original written statement - Application dismissed. 2009(4) Civil Court Cases 263 (Bombay)

O.6.R.17 - Written statement - Amendment - Reply filed to temporary injunction copied and filed as written statement wherein there were only six paragraph whereas plaint had 22 paragraphs - Contents of rest of the paragraphs of plaint not dealt with in the written statement - A party not to be punished for the fault on the part of the lawyer - Vital and important facts which were necessary for proper adjudication of the claim not dealt with in the written statement - Amendment allowed. 2009(4) Civil Court Cases 141 (Bombay)

O.6.R.17 - Written statement - Amendment - Specific admission and deemed admission - Six out of 22 paragraphs of plaint dealt with in the written statement - It is only specific admission which cannot be allowed to be withdrawn and not deemed admission - It is a case of deemed admission - Amendment allowed. 2009(4) Civil Court Cases 141 (Bombay)

O.6.R.17 - Written statement - Amendment - Sufficient cause shown for not filing application before commencement of trial - Application rightly allowed by trial Court. 2009(4) Civil Court Cases 141 (Bombay)

O.7.R.11 - Rejection of plaint - Application filed after 28 years of filing of the suit - Held, defendant is not at liberty to apply for rejection of plaint at his leisure and after inordinate delay - Provision of O.7.R.11 CPC cannot be used as weapon to delay the proceedings of the suit. 2009(4) Civil Court Cases 103 (Allahabad)

O.7.R.11 - Rejection of plaint - Cause of action - Cause of action constitute a bundle of facts - In each case, the peculiarity of the case has to be construed for the examination as to whether the cause of action has arisen in favour of a party instituting the suit or not. 2009(4) Civil Court Cases 071 (Delhi)

O.7.R.11 - Rejection of plaint - Oral agreement to sell - Receipt of receiving two lacs issued - It was agreed that the agreement to sell shall be entered into within two months after discussing the details of the terms and conditions and the price - Pursuant to the token receipt, two other documents executed on behalf of the defendants for the same premises - Identity of the suit property & price thereof established and even the agreed date for registering the sale deed is indicated therein - Cannot be said that plaint does not disclose cause of action - Suit to be decided after parties lead evidence. 2009(4) Civil Court Cases 071 (Delhi)

O.7.R.11 - Rejection of plaint - Plaint can be rejected only and only on the basis of averments made in the plaint. 2009(4) Civil Court Cases 103 (Allahabad)

O.7.R.11(d) - Rejection of plaint - Ground of limitation - Only averments in plaint to be considered - Court at that stage cannot look into the objections of defendants to the date shown in the plaint as the date of accrual of cause of action - Question whether suit is within time or not is to be considered by Court for the purpose of rejection of plaint only on the basis of averments in the plaint. 2009(4) Civil Court Cases 063 (Bombay)

O.7.R.17 - Provision of O.7.R.17 CPC is an enabling provision by which a document can be brought on record - Under no circumstances, the standard of proof can be dispensed with - A document has to be necessarily proved in accordance with law. 2009(4) Civil Court Cases 110 (P&H)

O.8.R.1 - Written statement - Delay of five years in filing written statement - During all this time Court was not functioning and was lying vacant for a substantial period of time - No occasion arose for the defendant to file the written statement - Delay in filing written statement was not deliberate on the part of the defendant - Written statement allowed to be taken on record subject to payment of costs. 2009(4) Civil Court Cases 136 (Allahabad)

O.8.R.1 - Written statement - Provision of O.8.R.1 CPC is directory in nature being procedural - Trial Court can extend the time for filing written statement on sufficient cause being shown - Observance of the time schedule should be the rule and departure from it can only be made on satisfactory reasons to be recorded. 2009(4) Civil Court Cases 136 (Allahabad)

O.8.R.9 - Replication - Can be filed only with leave of the Court - For obtaining leave of Court filing of an application is not a must - Leave can also be obtained orally. 2009(4) Civil Court Cases 191 (Allahabad)

O.9.R.9 - Restoration of suit dismissed for default - Delay - Application for condonation of delay rejected on ground that there is inconsistency in evidence and that no documentary evidence was produced to substantiate the statement - Suit was at the stage of cross-examination of plaintiff - Held, rejection of application on hyper-technical ground resulted in miscarriage of justice - Impugned order set aside. 2009(4) Civil Court Cases 105 (Karnataka)

O.9.R.13 Proviso - Exparte decree - Setting aside - A decree can be set aside against all or any of the other defendants, regardless of the fact whether they appeared, contested or not - If the decree is indivisible Court is at liberty to set aside the decree not only against the defendant who applied for setting aside exparte decree against him, but also as against all or any the other defendants. 2009(4) Civil Court Cases 244 (S.C.)

O.9.R.13 Proviso - Scope - An ex parte decree is ordinarily to be set aside only as against the defendants against whom the decree has been ex parte and the suit is to be revived only qua the defendant who applied for setting aside the ex parte decree. 2009(4) Civil Court Cases 244 (S.C.)

O.13.R.4 - Marking of an exhibit - Mere exhibiting a document does not dispense with the proof of a document. 2009(4) Civil Court Cases 110 (P&H)

O.17.R.3 - Non production of evidence - Dismissal of suit - Application supported by an affidavit seeking adjournment filed - Court instead of deciding application dismissed the suit U.O.17.R.3 CPC - Delay in case not attributable to plaintiff only - Defendant was granted 11 adjournments for two years to produce documents but plaintiff was granted only five adjournments to produce evidence - 1999(Suppl.) CCC 55 (Raj.) followed - Judgment and decree under challenge not sustainable in the eye of law and hence set aside - Case remitted back so as to proceed with the trial. 2009(4) Civil Court Cases 147 (Rajasthan)

O.18.R.4, Evidence Act, 1872, Oaths Act, 1969, S.6(2) - There is no conflict between O.18.R.4 CPC on one side and the provisions of the Oaths Act and the Evidence Act on the other. 2009(4) Civil Court Cases 098 (Karnataka)

O.18.R.4 - Provision of O.18.R.4 CPC is applicable to the witnesses as well as the parties to the suit. 2009(4) Civil Court Cases 098 (Karnataka)

O.21.R.37 - Execution - Arrest and detention of J.D. - D.H. is required to place some material before the Executing Court which indicates that J.D. is possessed of property and means - D.H. is not required to conclusively prove as regards the means of J.D. 2009(4) Civil Court Cases 174 (A.P.)

O.21.R.64 - Execution - Sale of property - Only so much of property must be sold which is necessary to satisfy the decree - Provision of O.21.R.64 CPC is mandatory - Objection if not raised at the time of preparation of proclamation cannot be said to be waived - Auction sale is void when not complied with provision of O.21.R.64 CPC. 2009(4) Civil Court Cases 080 (Allahabad)

O.21.R.97 - Execution - Objections - Cannot be held not maintainable when objector has availed the remedy of declaration suit in respect of his title. 2009(4) Civil Court Cases 151 (P&H)

O.21.R.97 - Objection petition U.O.21.R.97 CPC alleging fraud or collusion between D.H. and J.D. - Held, it is a question of fact which can only be ascertained when issues are framed and opportunity granted to the parties to lead evidence - Objections U.O.21.R.97 CPC have to be decided as a suit - Held, Court below erred in not framing the issues to decide question of fact. 2009(4) Civil Court Cases 151 (P&H)

O.21.Rr.97, 90, S.11 - Execution - Objections - Res judicata - Objections U.O.21.R.90 CPC dismissed on the ground that remedy is already sought by filing a civil suit therefore there is no reason to implead as a party in the execution application - Objections filed U.O.21.R.97 - Held, order does not constitute res judicata insofar as the question of title is concerned. 2009(4) Civil Court Cases 151 (P&H)

O.37.R.3(5) - Summary suit - Leave to defend - Suit claim Rs.2.66 crores and leave to defend granted on deposit of Rs.2 crores - Conditions imposed while granting leave to defend should not be unduly onerous - Appellant to deposit a sum of Rs.1.10 crores within a period of two months and further a sum of Rs.90 lacs to be deposited before trial Judge who shall in turn invest the same in a fixed deposit so as to enable the successful party to be compensated from the said option. 2009(4) Civil Court Cases 060 (S.C.)

O.39.Rr.1, 2, Specific Relief Act, 1963, S.20 - Injunction to restrain defendant from interfering with possession - Possession of plaintiff on basis of leave and licence agreement - On expiry of licence period, possession of plaintiff is that of a trespasser - Plea that there is irrevocable licence and therefore specific performance will have to be granted, not tenable - No irreparable loss will be caused if injunction is not granted. 2009(4) Civil Court Cases (D.B.) 207 (Bombay)

O.39.Rr.1, 2 - Temporary injunction - Plaintiff not approaching Court with clean hands - Held, plaintiff is not entitled to injunction. 2009(4) Civil Court Cases 302 (P&H)

O.39.Rr.1, 2 - Temporary injunction - Restraining further construction - Construction of considerable magnitude already made - Entire amount under the agreement already made - Plaintiff not to suffer any substantial injunction if injunction is not granted - If ultimately suit is decreed plaintiff can be compensated in damages or defendant can be directed to pull down the construction and deliver vacant possession to the plaintiff when no equity can be claimed for such construction - In case injunction is granted then construction already made will be destroyed and defendant will suffer irreparable loss and injury - Order refusing to grant injunction, upheld. 2009(4) Civil Court Cases 176 (S.C.)

O.39.Rr.1, 2 - Temporary injunction - Suit for specific performance - Restraining defendant from dealing with his property - While granting injunction condition can be imposed on plaintiff that in case he fails in his suit he will pay to defendant the difference between the agreed price and present market value of the property. 2009(4) Civil Court Cases 172 (Delhi)

O.39.Rr.1,2 - Temporary injunction - Three important ingredients for grant of temporary injunction are : (i) Prima facie case (ii) irreparable loss and (iii) the balance of convenience - Court has to scrutinize the case of plaintiff on the three touchstones for granting temporary injunction. 2009(4) Civil Court Cases (D.B.) 207 (Bombay)

O.39.R.2-A - Temporary injunction - Disobedience - Proceedings are quasi criminal in nature - Person who intentionally violates injunction order can be detained in prison - Principles of criminal law regarding mens rea and also that the defendant has voluntarily and intentionally committed breach of an ad interim injunction order must be proved on record beyond all shadows of doubt. 2009(4) Civil Court Cases 255 (P&H)

O.41.R.27 - Additional evidence at appellate stage - Documents totally irrelevant - Application rejected. 2009(4) Civil Court Cases 057 (P&H)

Clean hands

Clean hands - A person not coming to Court with clean hands is not entitled to injunction. 2009(4) Civil Court Cases 302 (P&H)

Court Fees Act, 1870

S.6-A(2) - Court fee - Suit for declaration and injunction - Ad valorem Court fee payable - Direction given to pay ad valorem Court fee within one month failing which S.6-A(2) of Court Fees Act, 1870 will apply. 2009(4) Civil Court Cases (DB) 039 (Allahabad)

Criminal Procedure Code, 1973

S.125 - Maintenance - Children - Maintenance granted to one son and two daughters - In the meantime children became major - Direction had been issued to recover the amount of maintenance only for the period prior to the sons attaining majority and the daughters getting married - No interference in the impugned order warranted. 2009(4) Civil Court Cases 185 (S.C.)

S.125(3), Limitation Act, 1963, S.15 - Maintenance - Execution - Limitation - One year - Limitation for filing application for execution is to be computed upon excluding the period during which the order of stay was operating. 2009(4) Civil Court Cases 185 (S.C.)

East Punjab Urban Rent Restriction Act, 1949

S.13 - Eviction - Shop - Personal necessity - Eviction can be ordered on ground of personal necessity if landlord makes out a foundation of laying such a claim that is (a) is required to be in his own occupation; (b) he is not occupying another residential building; (c) that he has not vacated such a building without sufficient cause - If all these circumstances exist then onus is on tenant to show that landlord lacks bonafides. 2009(4) Civil Court Cases 057 (P&H)

S.13 - Eviction - Shop - Personal necessity - Not pleaded in earlier eviction petition - Means that there was no personal necessity at that time - Personal necessity if not existed earlier it could arise subsequently. 2009(4) Civil Court Cases 057 (P&H)

S.13 - Eviction - Shop - Personal necessity - Requirement details if given and nothing to suspect bona fides then eviction to follow. 2009(4) Civil Court Cases 057 (P&H)

S.13, Civil Procedure Code, 1908, O.41.R.27 - Eviction - Revision in High Court - Dismissal on ground that fact not disclosed as to dismissal of application for additional evidence by appellate Court - Held, this is no ground to dismiss revision - Matter remitted back for decision afresh. 2009(4) Civil Court Cases 070 (S.C.)

Evidence Act, 1872

Ss.34, 62 - Bahi entries - Proof - Author of Bahi entries not examined - Entries in account book cannot be exhibited in the statement of witness who has not recorded the entries. 2009(4) Civil Court Cases 110 (P&H)

Ss.36, 60 - Encroachment - Proof of extent of encroachment - Cannot be proved in absence of public records. 2009(4) Civil Court Cases 014 (Bombay)

Ss.36 & 60 - Encroachment - Fact and extent of encroachment - Cadesteral Surveyor has to first ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment - If such report of the Commissioner is proved, as rendered, keeping in view the requirements of rules relating to measurement and if it withstands the test of cross-examination, unless admitted document, alone can be the foundation as to proof of fact and of extent of encroachment - It would be impermissible to record a finding as to the fact and extent of encroachment, if any, without ascertaining the fact and extent of encroachment by measurement, based on public record and undisputed and/or settled boundaries of respective lands and measurement of surrounding lands, as may be required. 2009(4) Civil Court Cases 014 (Bombay)

Ss.36 & 60 - Encroachment - Proof and extent - Court Commissioner not adopting a correct procedure - Suit not to be dismissed merely on this ground - Court to get it re-measured according to rules again and again, if necessary as failure of Cadesteral Surveyors is not attributable to parties to the suit. 2009(4) Civil Court Cases 014 (Bombay)

Ss.36 & 60 - Encroachment - Proof - In case there are undisputed boundaries then encroachment is a matter of fact - Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment. 2009(4) Civil Court Cases 014 (Bombay)

Ss.50, 114 - Marriage - A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage. 2009(4) Civil Court Cases 219 (S.C.)

S.60 - Encroachment - Fact of encroachment is a matter of three aspects together, namely which can be (1) seen, (2) perceived by sense by taking aid of measurement devices, and (3) an information based thereon. 2009(4) Civil Court Cases 014 (Bombay)

S.73 - Comparison of signatures with signatures on photostat copies - Signatures cannot be compared from the photocopy because in these days of advance technology, signatures of a person can be lifted from one document and put on another document by super imposition. 2009(4) Civil Court Cases 110 (P&H)

S.81 - Newspaper report - A statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. 2009(4) Civil Court Cases Civil Court Cases 544 followed). 2009(4) Civil Court Cases 042 (P&H)

General Clauses Act, 1897

S.6 - Amendment - Prospective or retrospective - Depends upon its construction - S.6 of the Act saves a right accrued and/or a liability incurred - It does not create a right - When S.6 applies only an existing right is saved thereby - The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one - If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly stated otherwise. 2009(4) Civil Court Cases) 30 (S.C.4 (Specific Relief Act, 1963, S.20)

Hindu Law

Hindu Law - Doctrine of blending - To invoke doctrine of blending plaintiff has to prove by clear intention of the coparcener to waive his separate right and such intention cannot be inferred from mere fact that he allowed the other members of the family to use such property jointly with himself. 2009(4) Civil Court Cases 282 (P&H)

Hindu Law - Joint Family - There exists a presumption with regard to the continuance of the joint family - Burden is on the other side to establish that the joint family disrupted prior to purported grant - Khata in question was an ancestral property - No interference warranted in finding of High Court. 2009(4) Civil Court Cases 130 (S.C.)

Hindu Law - Joint Hindu Family - Has no legal entity, which may be distinct and separate from that of the members who constitute such a family - A Joint Hindu Family is a unit to which no outsider can be admitted by consent of the parties - It is a status which can be acquired only by birth or by adoption - Such a joint family may be broken up by separation of individual members or by a partition amongst all the members. 2009(4) Civil Court Cases 282 (P&H)

Hindu Law - Mitakshara School - A mitakshara coparcenary is a separate entity - Once the property vested in it, the same would continue to vest in it irrespective of the death of one or the other coparceners subject of course to the application of rule of survivorship. 2009(4) Civil Court Cases 130 (S.C.)

Hindu Marriage Act, 1955

S.5, Evidence Act, 1872, Ss.50, 114 - Marriage - Valid marriage - Can be decided not only on the basis of evidence adduced by parties but also on the basis of conduct of the parties - There is a presumption of a valid marriage having regard to the fact that they had been residing together for a long time and has been accepted in the society as husband wife, could also be drawn - Presumption of valid marriage is rebuttable and it is for the other party to establish the same. 2009(4) Civil Court Cases 219 (S.C.)

S.13 - Divorce - Cruelty - Husband seeking divorce on ground of cruelty by wife - Attitude of wife insulting and non co-operation from the very inception of marriage - Wife hated rendering services to the aged parents and an unmarried uncle of husband who had been putting up with them - Wife always insisted upon separation in mess and residence - Wife not leaving a chance to insult husband in the presence of relations and guests - Wife threatened that she would poison her children and commit suicide in order to frame the husband in a criminal case and even consumed pesticide - All these acts constitute cruelty - Decree of divorce granted by trial Court upheld. 2009(4) Civil Court Cases 182 (P&H)

S.13 - Divorce - Sought by husband on ground of cruelty - Wife launched prosecution against the husband for performing second marriage - Nothing on record to prove the allegation - Held, if a spouse makes false allegation of such a nature to the employer of the other spouse and also launches prosecution there can be no better proof of cruelty. 2009(4) Civil Court Cases 145 (P&H)

S.13 - Divorce - Sought by husband on ground of cruelty - Wife obtained decree of restitution of conjugal rights - No resumption of cohabitation for 11-12 years - Wife not taking any steps to get the decree implemented - Held, it is the wife who had caused mental cruelty to the husband. 2009(4) Civil Court Cases 145 (P&H)

S.24 - Maintenance pendente lite - Husband earning Rs.35,000/- p.m. - Wife a doctor running a private clinic - Income generated therefrom sufficient only to meet the establishment expenses - Order allowing interim maintenance at the rate of Rs.15,000/- p.m. upheld. 2009(4) Civil Court Cases 275 (P&H)

Hindu Succession Act, 1956

S.10 - Second marriage performed after coming into force of Hindu Marriage Act - Second wife could not be treated to be legally wedded wife to claim inheritance being widow. 2009(4) Civil Court Cases 241 (P&H)

S.23 (After amendment) - Daughter - Dwelling house - Partition - After 9.9.2005 any female heir can seek for partition even in respect of a dwelling house - Subsequent event arising out of change in law is to be applied. 2009(4) Civil Court Cases 100 (P&H)

S.23 (As omitted by Amendment Act, 2005) - Dwelling house - Hindu female has absolute right to seek partition wholly occupied by joint family - Right of a female heir in a property of her father, who has died intestate is equal to her brother. 2009(4) Civil Court Cases 304 (S.C.)

S.23 - Dwelling house - Right of female to seek partition - Death of Hindu male in 1996 - After deletion of S.23 in the year 2005 female heir has a right to seek partition of dwelling house by metes and bounds and maintain a suit for partition of dwelling house though Hindu male died in 1996 - Contention that Amendment Act 2005 cannot be held to have retrospective effect and thus right and obligations of the parties should be determined as were obtaining on the date of institution of suit not tenable. 2009(4) Civil Court Cases 304 (S.C.)

Insurance Act, 1938

S.39 - Insurance - Nomination - Only indicates the hand which is authorised to receive the amount - Amount under the policy can be claimed by heirs of the assured in accordance with the law of succession governing them. 2009(4) Civil Court Cases 219 (S.C.)

Limitation Act, 1963

S.14 - Defendant in a previous proceeding can also invoke S.14 of the Act - It is not necessary that plaintiff was prosecuting the previous proceeding as a plaintiff. 2009(4) Civil Court Cases (DB) 202 (Kerala)

S.14, Civil Procedure Code, 1908, Ss.10 & 11 - "Matter in issue" occurring in Ss.10 & 11 of CPC can be adopted to interpret "same matter in issue" occurring in S.14 of Limitation Act - When considering applicability of S.14, relief claimed in two proceedings may not always be decisive. 2009(4) Civil Court Cases (DB) 202 (Kerala)

Negotiable Instruments Act, 1881

S.138 - Dishonour of cheque - Bank - Means drawee Bank on which the cheque is drawn and not any other Bank. 2009(4) Civil Court Cases 125 (Bombay)

S.138 - Dishonour of cheque - Complaint can be filed by payee through his power of attorney holder. 2009(4) Civil Court Cases 028 (S.C.)

S.138 - Dishonour of cheque - Jurisdiction - Court within whose jurisdiction the cheque was merely presented for realisation has no territorial jurisdiction to try the offence. 2009(4) Civil Court Cases 125 (Bombay)

S.138 - Dishonour of cheque - Notice - Receipt of notice and non payment of demanded amounts are ingredients which have precedence over the place wherefrom the notice of demand was issued. 2009(4) Civil Court Cases 125 (Bombay)

S.138 - Dishonour of cheque - Offence is complete after commission of several interconnected acts. 2009(4) Civil Court Cases 125 (Bombay)

S.138, Bankers' Books Evidence Act, 1891, Ss.4, 2(3) - Dishonour of cheque - Memo of dishonour - Mode of proof and evidentiary value attached to certain document u/s 4 of Bankers Books Evidence Act is not available to a memo of dishonour. 2009(4) Civil Court Cases 138 (Kerala)

S.138, Criminal Procedure Code, 1973, Ss.357(3), 431, Indian Penal Code, 1860, S.64 - Dishonour of cheque - Default in payment of compensation - Default sentence of imprisonment can be imposed for non payment of compensation. 2009(4) Civil Court Cases 114 (S.C.)

S.138, Evidence Act, 1872, Ss.45, 73 - Dishonour of cheque - Cheque alleged to be forged and fabrication - Comparison of signatures by an expert - Opportunity granted to examine an expert at own cost. 2009(4) Civil Court Cases 021 (S.C.)

Ss.138, 141 - Dishonour of cheque - Company - Complaint filed by special power of attorney holder - Complaint is maintainable as company had authorised him to file complaint. 2009(4) Civil Court Cases 237 (Allahabad)

Ss.138, 141 - Dishonour of cheque - Complaint against Managing Director and other directors - Said accused shown to be responsible for conduct of business of the company at relevant time - Complaint against them is maintainable - However, absence of averment against other directors that they were incharge of and were responsible for conduct of business of the company - Compliant against other directors not maintainable. 2009(4) Civil Court Cases 237 (Allahabad)

Ss.138, 146 - Dishonour of cheque - Memo of dishonour - If a memo, bearing official mark denoting reason of dishonour is produced, Court is bound to presume that the cheque has been dishonoured for the reason stated in the memo. 2009(4) Civil Court Cases 138 (Kerala)

Nomination

Nomination - Any beneficial interest is not conferred on the nominee after the death of the person concerned - Nomination indicates the hand which is authorised to receive the amount or manage the property - Property or the amount, as the case may be, can be claimed by the heirs of the deceased, in accordance with the law of succession, governing them. 2009(4) Civil Court Cases 077 (S.C.)

Registration Act, 1908

Ss.17, 32-A, 34, Constitution of India, Art.226 - Sale deed - Unilaterally executed deed of cancellation - Held, writ petition under Art.226 of the Constitution is maintainable challenging registration of a unilaterally executed deed of cancellation of a sale. 2009(4) Civil Court Cases 223 (Madras)

S.17, 32-A, 34 - Unilateral execution of cancellation of sale deed - Held, Registering Officer is obliged legally to reject and to refuse to register a deed of cancellation of a sale unilaterally executed without the knowledge and consent of other parties to the sale deed and without complying with S.32A of the Registration Act. 2009(4) Civil Court Cases 223 (Madras)

Sale

Sale - By co-sharer - An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court. 2009(4) Civil Court Cases 259 (S.C.)

Specific Relief Act, 1963

S.6 - If tenant is forcibly dispossessed landlord is entitled to file suit u/s 6 of the Act. 2009(4) Civil Court Cases 233 (Bombay)

S.16(c) - Specific performance - Ready and willing - Defaults committed of the terms and conditions of the agreement - Not ready and willing to perform his part of the agreement - Agreement entered into between the parties cannot be given effect to. 2009(4) Civil Court Cases 119 (S.C.)

S.20 - Specific performance - When a decree for compensation can be granted as an alternative, the specific performance shall not be granted. 2009(4) Civil Court Cases (D.B.) 207 (Bombay)

S.28 - Extension of time - Court has power to enlarge time in favour of D.H. to pay the amount or to perform the conditions mentioned in the decree for specific performance - Court can either extend time for compliance of the decree or can order rescission of the agreement - These powers are available to the Trial Court which passed decree of specific performance. 2009(4) Civil Court Cases 195 (S.C.)

S.28 - Failure to comply with conditions mentioned in the decree - Application by vendor for rescission of agreement on account of non payment of balance amount within stipulated period - Vendee seeking extension of time - Court refused to extend time as vendee failed to place relevant material about his inability to deposit the balance amount - No reasonable cause to extend time for depositing the balance consideration - Order rescinding contract, upheld. 2009(4) Civil Court Cases 195 (S.C.)

Stamp Act, 1899

S.2(24) - Settlement - Not only instruments which are non-testamentary dispositions of property for any religious or charitable purpose, but also declarations of trust which record the terms of such disposition, are settlements. 2009(4) Civil Court Cases 002 (S.C.)

S.2(24) - Trust deed - Three executant - Divesting themselves of ownership of property and transferring the same to the Trust represented by five trustees - There being a disposition for religious and charitable purposes, the instrument is a 'settlement'. 2009(4) Civil Court Cases 002 (S.C.)

S.2(24) - 'Disposition' - It is a term of wide import which encompasses any devise or mode by which property can pass and includes giving away or giving up by a person of something which was his own - Word "disposition" refers to a bilateral or multilateral act of transfer and will not apply to a unilateral act as, for example, when a person treats his individual property as a joint family property. 2009(4) Civil Court Cases 002 (S.C.)

S.6 - An instrument when comes within two or more of the descriptions and duties chargeable thereunder are different then instrument is to be chargeable with the highest of such duties. 2009(4) Civil Court Cases 002 (S.C.)

Succession Act, 1925

S.372 - Succession certificate - Deceased died at Dehradun - Deceased a domicile of Amritsar - Succession certificate sought in respect of only property situated at Delhi - Held, Court at Dehradun has no jurisdiction. 2009(4) Civil Court Cases 278 (Uttarakhand)

Telephone

Telephone - Dispute regarding telephone bills - Consumer complaint - Held, when special remedy is provided u/s 7-B of Indian Telegraph Act then remedy under Consumer Protection Act is by implication barred. (Telegraph Act, 1885, S.7-B, Consumer Protection Act, 1986). 2009(4) Civil Court Cases 001 (S.C.)

Transfer of Property Act, 1882

S.48 - Latter rights are subject to rights previously created, where different rights at different times are created and where all such rights cannot coexist. 2009(4) Civil Court Cases 164 (Delhi)

S.52 - Lis pendens - Even if there s no injunction, the principle of lis pendens enshrined in S.52 of TPA applies. 2009(4) Civil Court Cases 164 (Delhi)

Ss.52, 41 - Bonafide purchaser during pendency of the proceedings - Exoneration in proceedings U.O.39.R.2-A CPC does not lead to the conclusion that defendant is a bonafide purchaser during pendency of the proceedings, more so when no finding in that proceedings is given that defendant is a bonafide purchaser - Defendant cannot claim protection of S.41 of the Act. 2009(4) Civil Court Cases 255 (P&H)

Ss.122, 123 - Gift - Acceptance - Possession of the donee over the property gifted is a proof of acceptance provided such possession is in pursuance thereof. 2009(4) Civil Court Cases 029 (Allahabad)

Ss.122, 123 - Gift - Has to be made voluntarily without consideration by one person and accepted by the another in whose favour it is made and the transfer has to be made by a registered instrument signed by or on behalf of the person making it and attested by at least two witnesses or by delivery. 2009(4) Civil Court Cases 029 (Allahabad)

Ss.122, 123 - Gift - Valid gift - One of the basic conditions for a valid gift is its acceptance by or on behalf of the donee - However, there is no specific mode provided for acceptance of the gift - Acceptance of a gift can be express or by implication and the implication can be drawn from the surrounding facts and circumstances. 2009(4) Civil Court Cases 029 (Allahabad)

Will

Will - Suspicious circumstances - Will got scribed in Tehsil Complex from regular deed writer but not got registered - Exclusion of daughter on ground that sufficient property was given to her as dowry at the time of her marriage but no evidence placed on record to prove this fact - Beneficiaries of Will present at the time of execution of Will becomes suspicious when coupled with other attending circumstances - Age of testator 75 years who died within two and a half months of execution of Will - Failure to remove all these suspicious circumstances - Held, Will is surrounded by suspicious circumstances. 2009(4) Civil Court Cases 193 (P&H)