Part 11

IMPORTANT DECISIONS

 Agreement to sell - Plaintiff even ready to pay increase in price - This is an additional fact that weighs with the Court in not denying the decree of specific performance. 2009(4) Civil Court Cases 550 (Delhi)

 Agreement to sell - Relief of possession is inherent in relief for specific performance of contract for sale. 2009(4) Civil Court Cases 565 (Kerala)

 Agreement to sell - Suit filed within one month - It is the manifestation of the willingness and readiness of a plaintiff to perform his part of agreement. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 429 (P&H)

 Common wall - Either party can replace a party wall which is dangerous to life or property or insufficient to support existing structures. 2009(4) Civil Court Cases 339 (M.P.) (DB)

 Dishonour of cheque - Cheque issued from an account not maintained by accused but by someone else - Accused cannot be prosecuted as one of the ingredients that cheque must have been issued on an account maintained by him not fulfilled - Complaint quashed. 2009(4) Civil Court Cases 443 (S.C.)

 Dispossession in violation of decree of prohibitory injunction - Executing Court can issue an order of mandatory injunction for restoration of possession - Decree holder need not to file another suit. 2009(4) Civil Court Cases 586 (P&H)

 Divorce by mutual consent - Waiving of waiting period of six months - It is only Supreme Court which can waive waiting period of six months - High Court or Civil Courts have no such power to grant relief before the periods prescribed under the relevant provisions. 2009(4) Civil Court Cases 378 (S.C.)

 Domestic violence - A male can also be the victim or sufferer party. 2009(4) Civil Court Cases 410 (M.P.)

 Execution - D.H. not remembering as to receipt of payment and issuance of receipts - Other party producing receipts - Objections cannot be dismissed that payment is not certified. 2009(4) Civil Court Cases 374 (Allahabad)

 Friendly loan - Money lenders licence is not required. 2009(4) Civil Court Cases 533 (P&H)

 Matrimonial proceedings - Court can allow medical examination of a party. 2009(4) Civil Court Cases 585 (S.C.)

 Mediclaim policy - Non disclosure of existence of chronic disease at the time of taking of policy - Insurance Company is justified in repudiating the claim. 2009(4) Civil Court Cases 503 (S.C.)

 Partition - Final partition proceedings are not subject to any period of limitation. 2009(4) Civil Court Cases 536 (S.C.)

 Partition & Separation - Where co-sharers divide it among themselves by metes and bounds it is partition - In case only one out of many co-sharers wants to get his share separated and others continue to remain joint then there is only a separation of one of the co-sharers. 2009(4) Civil Court Cases 536 (S.C.)

 Partnership firm - Plea that suit is not maintainable - It includes the plea that suit is barred u/s 69 of Partnership Act. 2009(4) Civil Court Cases 521 (H.P.) (DB)

 Photocopy of an agreement - Not an instrument - Cannot be impounded and validated by payment of unpaid/insufficient stamp duty and penalty. 2009(4) Civil Court Cases 431 (Delhi)

 Plaint - Amendment - Wrong description of the name of plaintiff can always be corrected. 2009(4) Civil Court Cases 491 (Delhi) (DB)

 Rent - While deciding the question of bona fide requirement of the landlord, it is quite unnecessary to make endeavour as to how else the landlord could have adjusted himself. 2009(4) Civil Court Cases 529 (P&H)

 Rent - Stay of eviction order - Can be granted subject to payment of rent higher than contractual rent - In case tenant is successful then contractual rent is to prevail and he is to get back the amount paid in excess of contractual rent - Payment should not ordinarily be ordered to be paid to the landlord - Deposited amount alongwith accrued interest to be paid to the successful party. 2009(4) Civil Court Cases 318 (S.C.)

 Sale deed - Execution by power of attorney holder on behalf of principal - Power of attorney not registered - In such a case it is S.32(a) of Registration Act which applies and not S.32(c) of the Act - Power of attorney is required to be executed and authenticated in the manner as provided in S.33 of the Act when it is S.32(c) which applies - Held, where a person holds a power of attorney which authorises him to execute a document as agent for some one else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and he is entitled u/s 32(a) to present it for registration. 2009(4) Civil Court Cases 591 (S.C.)

 Stamp duty - Vendee found in possession of more area of land than disclosed in the sale deed - Not liable to be pay additional stamp duty. 2009(4) Civil Court Cases 490 (Allahabad)

 Transferee pendente lite - Not a necessary or proper party - Order dismissing application, upheld. 2009(4) Civil Court Cases 392 (P&H)

 Uncross examined testimony of a witness - Cannot be read u/s 32 of Evidence Act. 2009(4) Civil Court Cases 578 (M.P.)

 Will - Registered - Endorsement of Sub Registrar that Will was signed or thumb marked in his presence after it was read over to the executant - Held, there is presumption of truth attached to such an endorsement. 2009(4) Civil Court Cases 361 (P&H)

 Witness present in Court has to be examined - Failure of concerned party to examine or to cross examine - Court can dispense with examination-in-chief or cross examination of the witness. 2009(4) Civil Court Cases 576 (Gauhati)

SUBJECT INDEX

Adjournment

 Adjournment - Illness slip - Case adjourned numerous time on illness slip of counsel - History of sending illness slips for adjournment purposes - Adjournment of case refused. 2009(4) Civil Court Cases 350 (Allahabad)

Adverse possession

 Adverse possession - Once plea of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. 2009(4) Civil Court Cases 356 (P&H)

Agreement to sell

 Agreement to sell - Specific performance - Increase in prices - Payment of something more than the amount agreed upon - 60% of the total sale consideration paid more than 14 years ago - Present value of property working out to Rs.98.64 lakhs approximately - Relief of specific performance granted subject to payment of a sum of Rs.87 lakhs. 2009(4) Civil Court Cases 550 (Delhi)

 Agreement to sell - Specific performance - Plaintiff keen on getting sale deed executed in his favour on payment of even increase in price - Held, this is an additional fact that weighs with the Court in not denying the decree of specific performance. 2009(4) Civil Court Cases 550 (Delhi)

 Agreement to sell - Specific performance - Ready and willing - Sixty percent sale consideration paid within one year of execution of agreement to sell - Plaintiff repeatedly informing defendant that he is ready to make the balance sale consideration - This fact not disputed - Held, plaintiff was ready and willing to perform his part of the agreement. 2009(4) Civil Court Cases 550 (Delhi)

 Agreement to sell - Specific performance - Ready and willing - Plaintiff present in office of Sub Registrar alognwith balance sale consideration and other expenses and marked his presence in office of Sub Registrar - Defendant did not come present to perform his part of contract - Held, it is sufficient indicator of willingness and readiness of plaintiff to perform his part of the agreement. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 429 (P&H)

 Agreement to sell - Specific performance - Ready and willing - Suit filed within one month of the expiry of time fixed for execution of sale deed - Held, where suit is filed promptly, then it is the manifestation of the willingness and readiness of a plaintiff to perform his part of agreement. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 429 (P&H)

 Agreement to sell - Specific performance - Relief of possession - Not always necessary to claim the relief of possession specifically as relief of possession is inherent in relief for specific performance of contract for sale. (Specific Relief Act, 1963, S.33, Transfer of Property Act, 1882, S.5(1)(f). 2009(4) Civil Court Cases 565 (Kerala)

Civil Procedure Code, 1908

 Civil Procedure Code, 1908, S.9 - Void decree - A decree is void only when it is passed by Court which inherently lacks jurisdiction - It must be a jurisdictional error - The jurisdictional error alone, renders the decree void and not an error of law - Passing of such a decree may, at the most, be an error of law. 2009(4) Civil Court Cases 387 (Bombay)

 Civil Procedure Code, 1908, S.11 - Plea raised and rejected in appeal - Cannot be reagitated in execution proceedings. 2009(4) Civil Court Cases 533 (P&H)

 Civil Procedure Code, 1908, S.24 - Matrimonial dispute - Transfer petition - Wife moved a transfer petition for transfer of matrimonial dispute from Maharashtra to Tamil Nadu - Supreme Court directed the District Mediation Cell Vellore to explore the possibility of settling the dispute - Parties entered into compromise and started living together - Proceedings closed. 2009(4) Civil Court Cases 590 (S.C.)

 Civil Procedure Code, 1908, S.47 - Execution - Objections - J.D. has to show that the decree was ex facie nullity - Executing Court is precluded from making an in-depth scrutiny as regards the entitlement of the plaintiff with reference to not only his claim made in the plaint but also the defence set up by the judgment-debtor - Executing Court can neither reopen the trial Court's judgment nor question its correctness. 2009(4) Civil Court Cases 365 (S.C.)

 Civil Procedure Code, 1908, S.60(i)(ccc) - Execution - Only residential house - Exemption from attachment - Objection as to - To be decided at the first instance before proceeding with the sale of property - Proceedings without deciding the objections are non-est in the eyes of law and deserve to be set aside. 2009(4) Civil Court Cases 417 (P&H)

 Civil Procedure Code, 1908, S.92 - Suit filed by a single person without obtaining leave of the Court - Suit u/s 92 CPC is required to be filed either by the Advocate General or by two or more persons, having an interest in the Trust - Since the suit has been filed by a sole plaintiff and that too without the leave of the Court, the suit is not maintainable. 2009(4) Civil Court Cases 372 (P&H)

 Civil Procedure Code, 1908, S.144 - Restitution - Disputed question in issue as to who was in possession on the date of order - Matter not to be decided summarily on basis of documents and reports submitted by executive authorities and on the basis of affidavits - Parties should be allowed to adduce evidence as findings recorded by trial Court on the issue of possession would attain finality on such question between the parties. 2009(4) Civil Court Cases 485 (Allahabad)

 Civil Procedure Code, 1908, S.144 - Restitution - Jurisdiction to make restitution is inherent in every Court and has to be exercised, wherever the justice of the case demands. 2009(4) Civil Court Cases 485 (Allahabad)

 Civil Procedure Code, 1908, Ss.144, 151 - Restitution - Court is to exercise its inherent power where case does not strictly fall within the ambit of S.144 CPC. 2009(4) Civil Court Cases 485 (Allahabad)

 Civil Procedure Code, 1908, S.151 - Inherent power - Cannot be exercised when the matter is concluded and there is remedy available to challenge the same as provided in the Code itself. 2009(4) Civil Court Cases 405 (Allahabad)

 Civil Procedure Code, 1908, S.151 - Inherent power - Court can exercise power u/s 151 C.P.C. in certain situations but not in a case where the party has a right of filing an appeal or of revision under the Code itself. 2009(4) Civil Court Cases 405 (Allahabad)

 Civil Procedure Code, 1908, S.151, Hindu Marriage Act, 1955 - Matrimonial proceedings - Medical Examination - Court can allow medical examination of a party to satisfy itself as to whether a party before it suffers from mental illness or not in exercise of its power u/s 151 CPC in absence of any such provision in any of the statutes. 2009(4) Civil Court Cases 585 (S.C.)

 Civil Procedure Code, 1908, Ss.151, 152, 153 & O.6.R.17 - Plaint - Amendment of description of suit property and consequential error in judgment and decree - In the absence of any other remedy, application u/ss 151, 152 and 153 of the Code is proper and maintainable - Order allowing application to amend the plaint, upheld. 2009(4) Civil Court Cases 449 (Bombay)

 Civil Procedure Code, 1908, S.152 - Clerical or arithmetical mistakes and errors arising from accidental slip or omission - Can be corrected in exercise of powers u/s 152 CPC are inadvertent mistakes which can be discovered without any further inquiry on question of law or fact and which are apparent on the face of the record. 2009(4) Civil Court Cases 409 (A.P.)

 Civil Procedure Code, 1908, S.152 - Description of property - Question requiring detailed inquiry - Such a variance in the boundaries of the property which gives rise to a doubt as to the very existence of the property cannot be treated as a clerical or arithmetical mistakes or error arising from accidental sip or omission - Cannot be corrected in exercise of power u/s 152 CPC. 2009(4) Civil Court Cases 409 (A.P.)

 Civil Procedure Code, 1908, S.153 - Description of suit property - Correction in plaint - Applicability of the provision of S.153 CPC - Analysed. 2009(4) Civil Court Cases 449 (Bombay)

 Civil Procedure Code, 1908, S.153 - "Any proceeding in a suit" - Can be given a narrow or wide import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language in which it appears. 2009(4) Civil Court Cases 449 (Bombay)

 Civil Procedure Code, 1908, S.153 - "In any proceeding" - Wide meaning has to be given to the phrase so as to advance the cause of justice. 2009(4) Civil Court Cases 449 (Bombay)

 Civil Procedure Code, 1908, O.1.R.10 - Impleading of a party - Suit for injunction against Municipal Board wherein question of jurisdiction of Municipal Board in issuing notice and taking action against plaintiff was relevant - Impleadment of neighbours of plaintiff unnecessary as dispute between neighbours is a matter for independent civil action - Order of impleadment set aside. 2009(4) Civil Court Cases 548 (Rajasthan)

 Civil Procedure Code, 1908, O.1.R.10 - Transferee pendente lite - Steps into shoes of the owner and is bound by the decree - He is neither proper nor necessary party - Order declining impleadment, upheld. 2009(4) Civil Court Cases 392 (P&H)

 Civil Procedure Code, 1908, O.2.R.2 - Earlier suit for permanent injunction filed - Suit dismissed in default - Again a suit for permanent injunction filed which was got dismissed as withdrawn - By that time, cause of action to file suit for specific performance has not arisen - Held, suit is not barred by O.2.R.2 CPC. 2009(4) Civil Court Cases 397 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment sought at appellate stage - Suit for specific performance - By amendment relief of possession sought - Recovery of possession of property is an ancillary relief - Relief which is omitted can be claimed at any stage of the proceedings - Order allowing amendment, upheld. 2009(4) Civil Court Cases 395 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Amendment of memo of parties - Sole proprietorship firm - Suit filed in the name of sole proprietorship firm - Suit can only be filed by the sole proprietor by disclosing that he is carrying on business under the name and style of the sole proprietary firm - Trial Court dismissed the application - Suit also dismissed on this ground - Appeal allowed and plaintiff allowed to amend the cause title of the plaint by showing that he is the sole proprietor and not the firm. 2009(4) Civil Court Cases 491 (Delhi) (DB)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Amendment seeking determination of real question of controversy can be permitted at any stage of the proceedings - Pre-trial amendments are to be allowed liberally than post trial - In pre-trial amendment opposite party is not prejudiced because it gets an opportunity of meeting the proposed amendment whereas in post trial amendment question of prejudice to the opposite party may arise and, in such event, it is incumbent on the part of the Court, to satisfy the conditions, prescribed in the proviso. 2009(4) Civil Court Cases 384 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - At the time of allowing amendment application Court is not required to go deep into the matter, so as to decide, whether the claim sought to be made, by way of amendment is barred by time or not - Such a question could be finally decided at the time of final decision of the case. 2009(4) Civil Court Cases 384 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Suit for injunction against the grant of retiral benefits to the defendant - Amendment sought seeking declaration that plaintiffs alone are entitled to be treated as legal heirs of deceased and all assets shall be given to them - Basis of amendment was denial of status of first defendant as the widow of deceased - Admission already made can be explained that it was by mistake and that truth was different from what was admitted - Order allowing amendment, upheld. 2009(4) Civil Court Cases 484 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Wrong description of the name of plaintiff can always be corrected. 2009(4) Civil Court Cases 491 (Delhi) (DB)

 Civil Procedure Code, 1908, O.6.R.17 - Written statement - Amendment - Withdrawal of admission - Tenancy admitted - Amendment cannot be allowed to deny such status and setting up title in himself - Admission cannot be allowed to be withdrawn except under extra ordinary circumstances - No such extra ordinary circumstances - Order dismissing application, upheld. 2009(4) Civil Court Cases 584 (P&H)

 Civil Procedure Code, 1908, O.7.R.11 - Rejection of plaint - For deciding application pleas taken in written statement are wholly irrelevant - It is the plaint which has to be read as a whole and if it discloses no cause of action, then, the plaint as a whole, or part of the plaint can be rejected. 2009(4) Civil Court Cases 470 (Rajasthan)

 Civil Procedure Code, 1908, O.7.R.14 - O.7.R.14 applies to plaintiff and not to the defendant - Failure to produce document over which reliance is placed and is in power and possession of plaintiff alognwith the plaint - Can be produced lateron only with the permission of the Court - For non compliance of the provision of O.7.R.14 CPC suit cannot be dismissed or penalty cannot be imposed upon the plaintiff. 2009(4) Civil Court Cases 472 (P&H)

 Civil Procedure Code, 1908, O.7.R.14, O.11.R.14 - An application U.O.7.R.14 & O.11.R.14 cannot be filed before filing the written statement. 2009(4) Civil Court Cases 472 (P&H)

 Civil Procedure Code, 1908, O.8.R.1 - Written statement - Court has discretion to allow defendant to file written statement even after expiry of 90 days in exceptionally hard cases as O.8.R.1 is discretionary in nature. 2009(4) Civil Court Cases 502 (P&H)

 Civil Procedure Code, 1908, O.8.R.1 - Written statement - Provision of O.8.R.1 is directory in nature - When ex parte proceedings are set aside then time elapsed during the interim period has to be ignored for which no explanation or reason is required to be given - Written statement filed on the date the exparte order was set aside - Order keeping the written statement on record does not suffer from any error of law. 2009(4) Civil Court Cases 575 (Allahabad)

 Civil Procedure Code, 1908, O.8.Rr.1, 10 - Written statement - Non filing within 90 days - Court is not bound to strike of the defence of defendant U.O.8.R.10 CPC if the written statement is not filed within 90 days. 2009(4) Civil Court Cases 502 (P&H)

 Civil Procedure Code, 1908, O.9.R.9 - Suit dismissed in default - Restoration - Sufficient cause - Suit dismissed in default at the stage of final arguments - Negligence of counsel - Parties cannot be deprived of their legal rights - It is expedient that the matter is decided on merits, rather it goes in default as substantial rights of parties are involved - Suit ordered to be restored to be decided on merits. 2009(4) Civil Court Cases 423 (Delhi)

 Civil Procedure Code, 1908, O.9.R.13 - Exparte decree - Setting aside - Non appearance despite receipt of notice for the reason that it was in Hindi which language they do not know - Summons however was issued both in Hindi as well as in English - Exparte decree can be set aside only on being satisfied that summons were not duly served or the person was prevented by any sufficient cause from appearing when the suit was called for hearing - Incorrect stand taken - Sole aim to delay the disposal of suit - Order of dismissal upheld. 2009(4) Civil Court Cases 334 (S.C.)

 Civil Procedure Code, 1908, O.9.R.13 - Exparte decree - Setting aside - Trial Court dismissed application - Appellate Court set aside exparte decree - High Court in revision set aside the order of appellate Court and restored the exparte decree - Held, High Court in revision can interfere only when order of appellate Court is perverse and arbitrary - No such perversity or arbitrariness - Order of High Court set aside. 2009(4) Civil Court Cases 396 (S.C.)

 Civil Procedure Code, 1908, O.9.R.13 - Exparte divorce decree - Setting aside - Wife had knowledge of decree of divorce - She did not file any application and had rather concocted a ground that she later came to know about the second marriage - Husband remarried after 5 months of passing of exparte divorce decree - Marriage not unlawful - Application for setting aside exparte became infructuous. 2009(4) Civil Court Cases 542 (P&H)

 Civil Procedure Code, 1908, O.11.Rr.12, 14 - Provisions of O.11.Rr.12 & 14 are independent to each other - Power as envisaged U.O.11.R.14 is wider than that as mentioned in Rule 12 but before exercise of power U.O.11.R.14, Court has to exercise its discretion while examining expediency, justness and relevancy of the document to the matter in question. 2009(4) Civil Court Cases 472 (P&H)

 Civil Procedure Code, 1908, O.13.R.4 - Mere marking a document as an exhibit does not dispense with its proof. 2009(4) Civil Court Cases 578 (M.P.)

 Civil Procedure Code, 1908, O.14.Rr.1,2, O.41.R.25, S.115 - Additional issues - Refusing or allowing - No right or obligation of the parties in controversy is adjudicated - Not a case decided between the parties - Does not come within the ambit of expression 'case which has been decided' - Revision against - Not maintainable. 2009(4) Civil Court Cases 350 (Allahabad)

 Civil Procedure Code, 1908, O.17.R.1(2), Evidence Act, 1872, S.137 - Witness present in Court has to be examined - Failure of concerned party to examine or to cross examine - Court can dispense with examination-in-chief or cross examination of the witness. 2009(4) Civil Court Cases 576 (Gauhati)

 Civil Procedure Code, 1908, O.18.R.20 - Partition - Preliminary decree passed - Final partition proceedings are not subject to any period of limitation. 2009(4) Civil Court Cases 536 (S.C.)

 Civil Procedure Code, 1908, O.20.R.1 - Judgment - For the purpose of construction of a judgment, it must be read as a whole. 2009(4) Civil Court Cases 365 (S.C.)

 Civil Procedure Code, 1908, O.20.Rr.6, 6-A - Decree - Should ordinarily be confined to the prayer made in the plaint. 2009(4) Civil Court Cases 365 (S.C.)

 Civil Procedure Code, 1908, O.21.R.2 - Execution - Payment or adjustments - D.H. not remembering as to receipt of payment and issuance of receipts - Other party producing receipts - Objections cannot be dismissed that payment is not certified - It is for the executing Court to decide the fact as to whether payments have been made or not. 2009(4) Civil Court Cases 374 (Allahabad)

 Civil Procedure Code, 1908, O.21.R.32(5) - Dispossession in violation of decree of prohibitory injunction - Executing Court can issue an order of mandatory injunction for restoration of possession - Decree holder need not to file another suit. 2009(4) Civil Court Cases 586 (P&H)

 Civil Procedure Code, 1908, O.21.Rr.84, 85 - Both the provisions are mandatory in nature - Non payment of price on the part of the defaulting purchaser renders sale proceedings as a complete nullity - Inherent powers of Court cannot be allowed to circumvent the mandatory provisions of the Code and relieve the purchaser of his obligation to make the deposit. 2009(4) Civil Court Cases 417 (P&H)

 Civil Procedure Code, 1908, O.21.R.85 - In no case the time provided in O.21.R.85 CPC can be extended. 2009(4) Civil Court Cases 417 (P&H)

 Civil Procedure Code, 1908, O.23.R.3 - Compromise - For decreeing suit in terms of compromise Court must observe the requirements of law as contained under O.23.R.3 CPC. 2009(4) Civil Court Cases 524 (Allahabad)

 Civil Procedure Code, 1908, O.23.R.3 - Compromise - In appeal - Suit dismissed as not maintainable - Appeal not to be allowed in terms of compromise unless the suit is held to be maintainable particularly in the circumstances when petitioner is throughout denying his signatures on the compromise. 2009(4) Civil Court Cases 524 (Allahabad)

 Civil Procedure Code, 1908, O.37.R.3(7) - Summary suit - Court is empowered U.O.37.R.3(7) CPC to excuse the delay on the part of defendant in entering an appearance for sufficient cause. 2009(4) Civil Court Cases 569 (Gujarat)

 Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary injunction - Delay and laches - Defendants filed two suits and plaintiff strongly contested both the suits - Plaintiff did not feel it necessary to file the suit until plaintiff found that his possession was frequently disturbed - Defendant also filed an injunction application against plaintiff which was pending for adjudication - In such circumstances it cannot be said that there was any delay and laches - Application cannot be rejected on that ground. 2009(4) Civil Court Cases 387 (Bombay)

 Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary injunction - Restraining defendants from obstruction made by them - Plaintiff prima facie established his right in the property whereas defendants have non - Defendant parking their vehicles in the suit property but had no right to object to the construction made by plaintiff - Plaintiff will suffer irreparable loss - Balance of convenience also lies in favour of plaintiff - Defendant restrained from entering into the suit property and interfering with possession of plaintiff. 2009(4) Civil Court Cases 387 (Bombay)

 Civil Procedure Code, 1908, O.39.Rr.1,2 - Common wall - Temporary injunction - Restraining defendant from causing damage to party wall - Trial Court directing defendant to give an undertaking that in case while constructing his portion including his share in the disputed party wall, if any damage is caused to plaintiff's property he will either get damaged property repaired or would pay compensation to the plaintiff - Appellate Court restrained defendant not to raise any construction in the disputed party wall and to maintain status quo - Order of appellate Court set aside and that of trial Court restored. 2009(4) Civil Court Cases 339 (M.P.) (DB)

 Civil Procedure Code, 1908, O.39.Rr.1,2 - Temporary injunction - Refusal - Appeal - Appellate Court is not supposed to interfere with the discretion exercised by trial Court - Trial Court itself held that plaintiff has prima facie case but declined injunction on ground of delay and laches - There was no delay or laches - Interference with such order is permissible. 2009(4) Civil Court Cases 387 (Bombay)

 Civil Procedure Code, 1908, O.39.Rr.1,2 - Temporary injunction - Restraining defendants from interfering in peaceful possession - Defendants sold their undivided share - Third party stranger cannot be granted possession of undivided share in a joint family property, by virtue of S.44 TPA - He has to work his remedies and seek partition - Defendants restrained from taking any steps towards dispossession of plaintiff till further orders, from portion of premises under his occupation - Directions given to local police accordingly. 2009(4) Civil Court Cases 465 (Delhi)

 Civil Procedure Code, 1908, O.41.Rr.1, 9 - Appeal - Whenever an appeal is filed, office concerned submits a report with regard to limitation, sufficiency of Court fee and filing of caveat - Unless those reports are obtained file is not presented before Court - In case file is presented to Court by mistake then it is duty of Court to ensure the report of office and only then to proceed to pass any order on appeal except the dismissal of appeal in limine. 2009(4) Civil Court Cases 524 (Allahabad)

 Civil Procedure Code, 1908, O.41.R.25, S.115 - Additional issues - Order refusing to frame passed in an appeal - Revision against - Not maintainable. 2009(4) Civil Court Cases 350 (Allahabad)

 Civil Procedure Code, 1908, O.41.R.27 - Additional evidence at appellate stage - It is in the larger interest of justice to allow the plea for additional evidence as reception of that evidence would enable the Court to dispose of the controversy completely and effectively - Application allowed. 2009(4) Civil Court Cases 344 (P&H)

 Civil Procedure Code, 1908, O.47.R.1 - Review - No error apparent on face of record and no other ground available U.O.47.R.1 CPC - Not permissible to entertain review application. 2009(4) Civil Court Cases 383 (S.C.)

Common wall

 Common wall - Generally a party wall is a wall erected and standing on a line between two estates or tenements owned by different persons for the use in common of both estates or tenements, and each owner owns in severalty as much of the wall as stands on his own land, subject to the easement of the other owner of support for his building from the entire wall and of the maintenance of the wall as a party wall. 2009(4) Civil Court Cases 339 (M.P.) (DB)

 Common wall - Term "party wall" may be used in four different senses, as meaning (1) a wall of which two adjoining owners are tenants in common; (2) a wall divided vertically into two strips one belonging to each of the adjoining owners; (3) a wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements; (4) a wall divided vertically into halves, each half being subject to a cross easement in favour of the owner of the other half. (M.P.) (DB) 339

 Common wall - Either party can replace a party wall which is in such condition as to be dangerous to life or property or insufficient to support existing structures on giving reasonable notice to the other owner and exercising reasonable care in the operation. 2009(4) Civil Court Cases 339 (M.P.) (DB)

 Common wall - Law as to - (1) each co-owner can reasonably use it, without interfering with the enjoyment of the wall by the other but he must not do anything which will damage or weaken the wall; (2) if a co-owner builds a new piece of wall on the top of the party wall either with the consent or with the acquiescence of the other co-owner, the raised portion of the wall assumes the same character as the original party wall; (3) if one co-owner raises the wall without the consent or acquiescence of the other co-owner, he makes himself liable to an action for an injunction; (4) where a party-wall is reconstructed by one co-owner as his exclusive expense it retains the original character of a party-wall and he cannot ask for an injunction to restrain the other co-owner from claiming ownership in it. 2009(4) Civil Court Cases 339 (M.P.) (DB)

Court Fees Act, 1870

 Court Fees Act, 1870, S.7(v) - Trespasser - Suit for possession - Court fee is to be paid in terms of S.7(v) of the Act which is to be according to the value of the subject matter of suit. 2009(4) Civil Court Cases 475 (S.C.)

 Court Fees Act, 1870, S.7(v), Civil Procedure Code, 1908, O.7.R.7 - Landlord purchasing property in possession of tenant - Eviction petition - Failure to prove relationship of landlord and tenant - In absence of proof of relationship of landlord and tenant landlord is not entitled to a decree for possession - However, landlord is entitled to seek possession on basis of title by treating the tenant as trespasser - Landlord to amend plaint to take plea of trespasser - An issue to that effect has to be framed - Landlord has to pay ad valorem Court fee - Tenant is at liberty to take plea of adverse possession. 2009(4) Civil Court Cases 475 (S.C.)

East Punjab Urban Rent Restriction Act, 1949

 East Punjab Urban Rent Restriction Act, 1949, S.13(3)(a)(i) - Bona fide requirement - While deciding the question of bona fide requirement of the landlord, it is quite unnecessary to make endeavour as to how else the landlord could have adjusted himself. 2009(4) Civil Court Cases 529 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(3)(a)(i) - Bonafide requirement - Premises required for transport business - Plea of tenant that landlord is earning more than two lacs per month and there is no need for landlord to start a business - Need is not to be assessed as to what landlord is earning - Assessment is as to whether there was a bona fide need for the landlord to require the premises. 2009(4) Civil Court Cases 529 (P&H)

Evidence Act, 1872

 Evidence Act, 1872, S.68 - Registered sale deed - Proof - No attesting witness is required to be examined to prove the execution of the sale deed unless its execution is denied by the person, who had executed the same. 2009(4) Civil Court Cases 356 (P&H)

 Evidence Act, 1872, S.138 - Cross examination - Witness remained uncross examined - Witness could not be subsequently cross examined as he became incapable of giving evidence due to infirmities of the old age - Held, an uncross examined testimony of witness cannot be read in evidence, as the right of cross examination is an important right. 2009(4) Civil Court Cases 578 (M.P.)

 Evidence Act, 1872, Ss.138, 32 - Uncross examined testimony of a witness - Provision of S.32 Clause 7 is not applicable to such a testimony - Uncross examined testimony of a witness cannot be read u/s 32 of Evidence Act. 2009(4) Civil Court Cases 578 (M.P.)

Haryana Urban (Control of Rent and Eviction) Act, 1973

 Haryana Urban (Control of Rent and Eviction) Act, 1973, S.13 - Eviction petition - Necessary party - Trust property - Property given on rent by Secretary of Trust - Eviction petition filed by Secretary without joining other Trustees - Petition is maintainable - Secretary is landlord qua tenant. 2009(4) Civil Court Cases 498 (P&H)

 Haryana Urban (Control of Rent and Eviction) Act, 1973, S.13 - Sub letting - Joining younger brother in business - Tenant himself engaged in cloth business at another premises - Not sub letting - In social setting of this country, an elder brother could always associate his younger brother in business - Fact that tenant had another business in same town is irrelevant. 2009(4) Civil Court Cases 498 (P&H)

Hindu Marriage Act, 1955

 Hindu Marriage Act, 1955, Ss.9, 13(1-A), 23(1)(a) - Decree of restitution of conjugal rights passed in favour of wife - Husband applying for divorce - Onus is on husband to prove as to what steps he had taken for restitution of co-habitation - Husband made it impossible for wife to resume cohabitation as he established separate house with other lady - Divorce petition filed by husband is liable to be dismissed as he was taking advantage of his own wrong - Decree of divorce granted by shifting onus on wife to prove what steps she had taken for resumption of cohabitation not proper. 2009(4) Civil Court Cases 509 (Bombay) (DB)

 Hindu Marriage Act, 1955, S.13(1)(ia), Civil Procedure Code, 1908, O.6.Rr.1, 2 - Cruelty - Proof beyond pleading - Cannot be looked into - In absence of pleading by husband that he was subjected to cruelty because of beating given to him at the house of wife cannot be accepted. 2009(4) Civil Court Cases 572 (P&H)

 Hindu Marriage Act, 1955, S.13(1)(ia) - Cruelty - Institution of criminal proceedings by wife does not constitute cruelty, nor the plea of irretrievable break down of marriage by erring spouse can be entertained. 2009(4) Civil Court Cases 572 (P&H)

 Hindu Marriage Act, 1955, S.13(1)(ia) - Irretrievable break down of marriage - Not a ground for divorce. 2009(4) Civil Court Cases 572 (P&H)

 Hindu Marriage Act, 1955, S.13(1)(ib) - Desertion - Wife ready and willing to reside with husband but husband refusing to accept her - There can be no animus deserandi on part of wife to desert the husband. 2009(4) Civil Court Cases 572 (P&H)

 Hindu Marriage Act, 1955, Ss.13(1)(ia), (ib) - Divorce - Petition by husband on ground of cruelty and desertion - Husband developed illicit relations with younger sister of wife and even had a daughter out of this union - Held, wife is not guilty of desertion as she had withdrawn from the conjugal company of the husband for a sufficient cause - In Indian society, a wife would be justified in staying away from her husband if the latter is proved to have developed illicit intimacy with another woman - Dismissal of petition - Order upheld. 2009(4) Civil Court Cases 519 (P&H)

 Hindu Marriage Act, 1955, Ss.13, 13-B - Irretrievable break down of marriage - Not one of the grounds indicated in the two provisions of the Act - It is only Supreme Court and none other Court which can apply the said doctrine to a proceeding under either of the said two provisions. 2009(4) Civil Court Cases 378 (S.C.)

 Hindu Marriage Act, 1955, Ss.13, 24 - Non payment of maintenance during pendency of appeal filed by wife against decree of divorce granted by trial Court in favour of husband - Maintenance not paid despite specific direction of High Court - Defence of husband struck off - As a consequence thereof divorce petition filed by husband is deemed to have been dismissed. 2009(4) Civil Court Cases 354 (P&H)

 Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - Consent given at the time of filing of joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for order and a decree for divorce is finally passed. 2009(4) Civil Court Cases 378 (S.C.)

 Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - It is only Supreme Court which can convert a proceeding u/s 13 of the Act into one u/s 13-B of the Act and pass a decree for mutual divorce, without waiting for the statutory period of six months - None of other Courts can exercise such power. 2009(4) Civil Court Cases 378 (S.C.)

 Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - Waiving of waiting period of six months - It is only Supreme Court which can waive waiting period of six months - High Court or Civil Courts have no such power to grant relief before the periods prescribed under the relevant provisions. 2009(4) Civil Court Cases 378 (S.C.)

 Hindu Marriage Act, 1955, S.24 - Maintenance pendente lite - No proof as to agricultural holding of husband - No proof as to income from dairy - No proof placed on record by husband that wife has income from tailoring - Husband an able bodied person and is bound to maintain his resourceless wife and minor child - Maintenance granted Rs.1500/- p.m. - Not on the higher side - Order upheld. 2009(4) Civil Court Cases 448 (P&H)

Insurance Act, 1938

 Insurance Act, 1938, S.2(d) - Expln. - Material fact - Any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk - Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be 'material'. 2009(4) Civil Court Cases 503 (S.C.)

 Insurance Act, 1938, S.2(d) - Expln. - 'Material' - Means and includes all "important", "essential" and "relevant" information in the context of guiding the insurer to decide whether to undertake the risk or not. 2009(4) Civil Court Cases 503 (S.C.)

 Insurance Act, 1938, S.45 - Mediclaim policy - Non disclosure of existence of chronic disease at the time of taking of policy - Insurance Company is justified in repudiating the claim. 2009(4) Civil Court Cases 503 (S.C.)

 Insurance Act, 1938, S.45 - Provision of S.45 of the Act applies to a life insurance policy and not to a mediclaim policy which is entirely different from a life insurance policy. 2009(4) Civil Court Cases 503 (S.C.)

Limitation Act, 1963

 Limitation Act, 1963, S.54 - Specific performance - Suit for - Limitation - To start within one month of passing of title in favour of defendant - Suit filed within three years of passing of title in favour of the defendant - Held, suit is filed within limitation - Intention of parties, as to when the period of limitation is to start running is required to be gathered, from the terms and conditions of the agreement to sell. 2009(4) Civil Court Cases 397 (P&H)

Medical negligence

 Medical negligence - A professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case the skill which he did possess - The standard to be applied for judging negligence is that of an ordinary person exercising skill in that profession - It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. 2009(4) Civil Court Cases 560 (S.C.)

 Medical negligence - Burden is on the claimant to prove breach of duty, injury and causation - The injury must be sufficiently proximate to the medical practitioner's breach of duty - In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. 2009(4) Civil Court Cases 560 (S.C.)

 Medical negligence - Civil and criminal law - For civil law term negligence is used for the purpose of fastening the defendant with liability of the amount of damages - To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. 2009(4) Civil Court Cases 560 (S.C.)

 Medical negligence - Transfusion of mismatched blood - Not an error of professional judgment - It is medical negligence - Order to pay compensation of rupees two lakhs, upheld. 2009(4) Civil Court Cases 560 (S.C.)

Negotiable Instruments Act, 1881

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - An offence is committed u/s 138 of the Act only when all the ingredients of the offence are satisfied. 2009(4) Civil Court Cases 443 (S.C.)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque amount paid before filing of complaint - Plea that payment not made within the stipulated period in notice - Legal liability ceased to exist - No useful purpose would be served in allowing the compliant to proceed any further - Complaint quashed. 2009(4) Civil Court Cases 456 (Rajasthan)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Defence witnesses - Trial Court denying to summon defence witnesses - Order set aside - Trial Court directed to summon those witnesses who are named in the application. 2009(4) Civil Court Cases 547 (Rajasthan)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Partnership firm - No averment in complaint pointing out the specific role played by any of the partners - No averment as to who signed the cheque - No illegality in impugned order discharging accused. 2009(4) Civil Court Cases 353 (Bombay)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - To constitute the offence, ingredients required to be fulfilled are : (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 2009(4) Civil Court Cases 443 (S.C.)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - 'Stop payment' - Burden is on accused to prove that dishonour of cheque was not due to insufficiency of funds and that there was valid cause including absence of any debt or liability for the stop payment. 2009(4) Civil Court Cases 493 (Kerala)

 Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357(3) - Dishonour of cheque - Conviction - Cheque amount Rs.49,000/- Accused sentenced 3 months SI and to pay fine of Rs.5,000/- - Case pending for 11 years - Sentence reduced till rising of Court - Accused to pay compensation of Rs.60,000/- to complainant. 2009(4) Civil Court Cases 493 (Kerala)

 Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - Cheque issued from an account not maintained by accused but by someone else - Accused cannot be prosecuted as one of the ingredients that cheque must have been issued on an account maintained by him not fulfilled - Complaint quashed. 2009(4) Civil Court Cases 443 (S.C.)

 Negotiable Instruments Act, 1881, Ss.138, 139 - Dishonour of cheque - Issuance of cheque admitted - Presumption u/s 139 is applicable that cheque was issued towards discharge of a debt or liability until the contrary is established by the maker. 2009(4) Civil Court Cases 493 (Kerala)

Notaries Act, 1952

 Notaries Act, 1952, S.3, Notaries Rules, 1956, R.13 - Notary - Removal - Professional misconduct - Proper enquiry should be made - There were complaints against the petitioner and the proper inquiry was made by the authority concerned after getting his explanation - Petitioner certified papers which were necessarily registrable u/s 17 of Registration Act and caused heavy loss to the State Exchequer - This misconduct is sufficient to hold that petitioner was unfit for practising as Notary - Requires no interference. 2009(4) Civil Court Cases 458 (Allahabad) (DB)

Partition

 Partition - Involves three issues : (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds? 2009(4) Civil Court Cases 536 (S.C.)

 Partition - 'Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees - When all co-owners get separated, it is a partition. 2009(4) Civil Court Cases 536 (S.C.)

 Partition/Separation - Where co-sharers divide it among themselves by metes and bounds it is partition - In case only one out of many co-sharers wants to get his share separated and others continue to remain joint then there is only a separation of one of the co-sharers. 2009(4) Civil Court Cases 536 (S.C.)

Partnership Act, 1932

 Partnership Act, 1932, S.69(2) - Partnership firm - Provision of S.69 Partnership Act is mandatory - A partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling with the ambit of S.69 of the Act. 2009(4) Civil Court Cases 521 (H.P.) (DB)

 Partnership Act, 1932, S.69(2) - Partnership firm - Suit is not maintainable - Includes the plea that suit is not maintainable u/s 69 of the Partnership Act - Plea that suit is barred u/s 69 of the Act is legal one and when plea is taken that suit is not maintainable then plaintiff is not taken by surprise as he is well aware of the question being raised - Court can consider the plea. 2009(4) Civil Court Cases 521 (H.P.) (DB)

Protection of Women From Domestic Violence Act, 2005

 Protection of Women From Domestic Violence Act, 2005, Ss.12, 28, Protection of Women From Domestic Violence Rules, 2006, Rule 6(5) - Domestic violence - Application by wife cannot be allowed without providing opportunity of leading evidence - Order passed without affording opportunity of leading evidence set aside. 2009(4) Civil Court Cases 410 (M.P.)

 Protection of Women From Domestic Violence Act, 2005, Ss.12, 28, Protection of Women From Domestic Violence Rules, 2006, R.5(2) - Domestic violence - Procedure - Magistrate to follow procedure as prescribed for application u/s 125 Cr.P.C. - Order to be enforced in same manner as laid down in S.125 Cr.P.C. 2009(4) Civil Court Cases 410 (M.P.)

 Protection of Women From Domestic Violence Act, 2005, Ss.12, 28 - Domestic violence - In domestic violence it is not always a woman who is victim or sufferer party - There may be cases where male partner may be harassed - Court are required to be vigilant enough in deciding the dispute as to which part of the family is a victim of the domestic violence. 2009(4) Civil Court Cases 410 (M.P.)

 Protection of Women From Domestic Violence Act, 2005, S.18 - Domestic violence - Order in favour of aggrieved person can be passed after providing an opportunity of hearing to the parties and on being satisfied with regard to happening of the domestic violence or that it is likely to happen - An order cannot be passed merely upon providing an opportunity of hearing. 2009(4) Civil Court Cases 410 (M.P.)

Punjab Registration of Money Lenders Act, 1938

 Punjab Registration of Money Lenders Act, 1938, S.3 - Friendly loan - Money lenders licence is not required - Money lenders licence is required at the time of institution of suit or presentation of application for execution, only in case the party is a money lender. 2009(4) Civil Court Cases 533 (P&H)

Registration Act, 1908

 Registration Act, 1908, S.17 - Deed of relinquishment of right in immovable property - Requires compulsory registration - Unregistered deed of relinquishment of right in immovable property is not admissible in evidence. 2009(4) Civil Court Cases 578 (M.P.)

 Registration Act, 1908, S.17 - Unregistered deed requiring compulsory registration - Admission therein - Held, an admission in unregistered document, which amounted to declaration of title in the property cannot be used in evidence. 2009(4) Civil Court Cases 578 (M.P.)

 Registration Act, 1908, S.32 - Persons eligible to present documents for registration - A document can be presented for registration by (i) by the person executing the document (ii) any person claiming under the document presented for registration and (iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order. (S.C.) 591

 Registration Act, 1908, Ss.32, 33 - Sale deed - Power of attorney - Not registered - Sale deed executed on behalf of principal - In such a case it is S.32(a) of the Act which applies and not S.32(c) of the Act - Power of attorney is required to be executed and authenticated in the manner as provided in S.33 of the Act when it is S.32(c) which applies - Held, where a person holds a power of attorney which authorises him to execute a document as agent for some one else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and he is entitled u/s 32(a) to present it for registration. (S.C.) 591

 Registration Act, 1908, Ss.32, 33 - "Person executing" - Includes a principal who executes by means of an agent - Power of attorney authorised executing a document under the terms of power of attorney is actual executant of the document and is entitled u/s 32(a) of the Act to present it for registration and get it registered. 2009(4) Civil Court Cases 591 (S.C.)

Rent & Eviction

 Rent & Eviction - Eviction order or decree - Appeal or revision - Stay of eviction order - Can be granted subject to terms including payment of higher rent than contractual rent - Status quo ante is to be restored in case appeal or revision of tenant is accepted and tenant is entitled to get back the amount paid in excess of contractual rent - Amount fixed by Court over and above the contractual monthly rent, ordinarily, should not be ordered to be paid to the landlord during the pendency of appeal or revision - Deposited amount alongwith accrued interest to be paid after final disposal to either side depending upon the result of the case - Court can order payment of such amount to landlord but same should be on terms so that in case the final decision goes in favour of tenant the payment should be made to him without any undue delay or complications. 2009(4) Civil Court Cases 318 (S.C.)

 Rent & Eviction - Eviction order or decree - Appeal or revision - Stay of execution of eviction order - Revisional or Appellate Court can grant stay of execution of eviction order or decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent - Amount so fixed should not be excessive, fanciful or punitive amount. 2009(4) Civil Court Cases 318 (S.C.)

Specific Relief Act, 1963

 Specific Relief Act, 1963, S.22 - Specific performance - Possession - Executing Court is empowered to pass orders on delivery of possession of execution of a conveyance not only against transferors but also against their transferees. 2009(4) Civil Court Cases 565 (Kerala)

 Specific Relief Act, 1963, S.22 - "Proceeding" includes execution proceedings also. 2009(4) Civil Court Cases 565 (Kerala)

 Specific Relief Act, 1963, S.34 - Suit for declaration of title - Name of plaintiff not shown in any capacity in the revenue records - Plaintiff also admitted in his evidence that he has been residing outside the suit land - It is clearly established that plaintiff is not even in possession of the suit land - No reason to interfere with the impugned judgment. 2009(4) Civil Court Cases 347 (S.C.)

Stamp Act, 1899

 Stamp Act, 1899, Ss.2(10), 47-A - Release deed or conveyance deed - Co-owners transferring their shares to other co-sharers who had pre-existing right in the property - Not a transfer rather it only amounts to an extension of their existing share - It does not amount to a sale or conveyance - Held, it is a release deed. 2009(4) Civil Court Cases 370 (Allahabad)

 Stamp Act, 1899, S.2(14), 33, 35 & 36 - Photocopy of an agreement - Not an instrument - Cannot be impounded and validated by payment of unpaid/insufficient stamp duty and penalty - Impugned order imposing penalty and directing payment of stamp duty on basis of photocopy cannot be sustained. 2009(4) Civil Court Cases 431 (Delhi)

 Stamp Act, 1899, S.33(1) - Insufficiently stamped document - Impounding - Not dependent upon its relevancy or admissibility or as to whether it was produced by the party himself or was produced on being summoned at the instance of the other party - Document when received in Court, it is duty of Court to examine the document whether it is properly stamped - Refusal to impound the document not sustainable - Matter remitted back to decide the application afresh. 2009(4) Civil Court Cases 359 (Allahabad)

 Stamp Act, 1899, S.47-A & 33, Stamp Rules, 1925, R.352 - Correctness of the market value of the property - Initiation of proceedings - Limitation is four years from the date of its registration - Delay explained not sufficient - Impugned order set aside. 2009(4) Civil Court Cases 403 (Allahabad) (DB)

 Stamp Act, 1899, S.47-A - Additional stamp duty - Vendee found in possession of more area of land than disclosed in the sale deed - Petitioner may be a trespasser over the area in excess of the area mentioned in the sale deed - Authority cannot demand additional stamp duty on the said excess area. 2009(4) Civil Court Cases 490 (Allahabad)

 Stamp Act, 1899, Ss.62, 64 & 70 - Instrument not duly stamped - Penal action - Criminal intention or mala fides to defraud the Govt. is not required u/s 62 of the Act whereas u/s 64 of the Act intention to defraud is necessary - Production of original document is not necessary - Prosecution under the said provisions of law can be initiated on sanction of a Collector, an officer authorized by the State Government or the Collector - Impugned order does not deal with question of mental intention to defraud - It is open to the competent authority to examine whether prosecution should be sanctioned. 2009(4) Civil Court Cases 431 (Delhi)

Transfer of Property Act, 1882

 Transfer of Property Act, 1882, Ss.52, 41 - Transferee pendente lite - A person who purchases the property, during the pendency of lis, is governed by S.52 of TPA as he purchases the property at his own risk and cost, and is to be ultimately bound, by the decree, which may be passed, in the suit - No protection, to such a vendee, u/s 41 TPA is available. 2009(4) Civil Court Cases 397 (P&H)

 Transfer of Property Act, 1882, S.105, Evidence Act, 1872, S.27 - Failure to prove relationship of landlord and tenant - In the event landlord proves his title he can get a decree of possession on the basis of title - Defendant can raise a contention that he had acquired an indefeasible title by adverse possession. 2009(4) Civil Court Cases 475 (S.C.)

 Transfer of Property Act, 1882, S.106 - Tenancy governed by Rent Act - After termination of tenancy tenant does not become a trespasser - He becomes statutory tenant. 2009(4) Civil Court Cases 475 (S.C.)

Will

 Will - Execution in favour of beneficiary whom the executant had been treating as his wife - Executant not having a child of his own - Nephews deprived - Held, Will duly executed cannot be said to be surrounded by suspicious circumstances. 2009(4) Civil Court Cases 361 (P&H)

 Will - Execution - Proof - Attesting witnesses dead - Will to be proved by examining witnesses who are able to prove the handwriting of executant - Signatures of one attesting witness identified by Sub Registrar who registered the Will - Held, Will is duly proved. 2009(4) Civil Court Cases 460 (P&H)

 Will - Limited estate conferred on Hindu widow in lieu of maintenance ripens into full ownership in view of S.14(1) of Hindu Succession Act, 1956 - Widow executed Will in favour of one out of four sons - Held, widow is competent to bequeath the property. 2009(4) Civil Court Cases 460 (P&H)

 Will - Registered - Endorsement of Sub Registrar that Will was signed or thumb marked in his presence after it was read over to the executant - Held, there is presumption of truth attached to such an endorsement. 2009(4) Civil Court Cases 361 (P&H)

 Will - Registered - Proof of execution - Sub Registrar when testifies that parties signed/thumb marked the Will in his presence and the contents thereof were read over before doing so, the Will in question is a valid one. 2009(4) Civil Court Cases 460 (P&H)

 Will - Scribe - Generally a scribe cannot be treated as an attesting witness - However, in the instant case scribe categorically deposed with regard to the execution of the Will - Held, statement of scribe cannot be treated to be that of a merely a scribe as the Will after it was scribed by him was duly executed in his presence. 2009(4) Civil Court Cases 361 (P&H)