O.J.A. MONTHLY REVIEW OF CASEs
ON
CIVIL, CRIMINAL & other LAWS, 2015
(December)
Odisha Judicial Academy, Cuttack, Odisha
ODISHA JUDICIAL ACADEMY
MONTHLY REVIEW OF CASES ON CIVIL, CRIMINAL &
OTHER LAWS, 2015 (December)
I N D EX
SL.
NO
1.
CASE
SECTION / ISSUE
Date
of Judgment
Cover Page & Index
PAGE
1-3
A. Civil Laws
(i)
2.
3.
4.
5.
6.
7.
8.
Civil Procedure Code
Jayanta Kumar Bhanja & Others
- Versus- Chitta Ranjan Bhanja &
Others.
In the High Court of Orissa:
Cuttack.
Menja Naik Vs. Bhima Naik and
others
In the High Court of Orissa:
Cuttack.
Section 96 & Sub Date of
–Rule 2 of Rule 3- JudgmentA of Order 41 of 03.12.2015
CPC
Section 100 of
CPC &
Section 2 (2)
Hindu Succession
Act 1956
A. Andisamy Chettiar Vs.
Sec. 107(1)(d)
A. Subburaj Chettiar
read with Rule 27
In the Supreme Court of
of Order XLI of
India
CPC
Smt. Sita @ Khusi Hasda & Order 1 rule 8 of
Others Vs. State of Orissa & CPC
Otheres
In the High Court of Orissa:
Cuttack
The
Co-operative
Sugar Order 7, Rule 11
Industries Ltd. Vs. M/s. Dharani read with Section
Sugar and Chemicals Ltd.
151 of C.P.C.
In the High Court of Orissa:
Cuttack
Shreya vidyarthi Vs.
Order VII Rule 11
Ashok vidyarthi & ors.
& Order VII Rule
In the Supreme Court of 13 of CPC
India
Order XXXII Rules
3, 10 and 11 of
the CPC
Smt. Basanti Paikaray Vs. Dr. Order 39 Rules 1
Prananath Paikaray & others
and 2 read with
In the High Court of Orissa: Section 151 of the
Cuttack
C.P.C.
4-7
Date of
Judgment03.12.2015
8-15
Date of
Judgment08.12.2015
16-18
Date of
Order08.12.2015
19-22
Date of
Judgment18.12.2015
23-27
Date of
Judgment 16.12.2015
28-33
Date of
Judgment11.12.2015
34-38
2
B. Criminal Laws
9.
10.
11.
12.
(i)
Criminal procedure Code
Dr. Nirmal Kumar Nayak Vs. Sections
State of Odisha
57,157,167,55A &
In the High Court of Orissa: 482 of Cr.P.C.
Cuttack.
(ii) Indian Penal Code
Hrushikesh Panda and others Vs. Section 148 & 323
State of Orissa
read with 149 of
In the High Court of Orissa: IPC
Cuttack
State of Punjab Vs. Bittu & anr. Section 302, 364,
etc.
201, 120B of IPC.
In the Supreme Court of India
Sujoy Mitra Vs. State of West Section 376 of IPC
Bengal
Section
482
of
In the Supreme Court of India Cr.P.C.
C. Other Laws
Date of
Judgment 09.12.2015
39-42
Date of
Judgment 24.12.2015
43-45
Date of
Judgment 16.12.2015
Date of
Judgment 02.12.2015
46-49
Articles
Date of
325,326,80,171 of JudgmentConstitution of
10.12.2015
India
Narcotic Drugs and Psychotropic Substances Act, 1985
55-58
(i) Constitution of India
13. Rajbala & ors. Vs. State of
Haryana & Ors.
In the supreme Court of India
(ii)
14.
Sujit Bepari Versus State of
Orissa
In the High Court of Orissa:
Cuttack
(iii) Hindu Marriage Act , 1955
15. Ranjana Rani Panda Vs. Sanjay
Kumar Panda
In the High Court of Orissa:
Cuttack
50-54
Section
Date of
20(b)(ii)(C) of the Judgment NDPS ACT &
10.12.2015
Section 313(1)(b)
Cr.P.C.
59-62
Section 13 (1)(ia) & (i-b) of
Hindu Marriage
Act
Section 127 of
Cr. p. C.
63-66
Date of
Judgment–
22.12.2015
*********
3
Civil Procedure Code
2. Section 96 & Sub –Rule 2 of Rule 3-A of Order 41 of CPC
Jayanta Kumar Bhanja & Others Vs. Chitta Ranjan Bhanja & Others.
D. DASH, J.
In the High Court of Orissa: Cuttack.
Date of Judgment- 03.12.2015
Issue
Filing appeal amount to service of notice.
Relevant Extract
The respondent nos. 1 to 8 as the plaintiffs had filed C.S. No.267
of 2005, a suit for partition and permanent injunction. The suit having
been dismissed, as unsuccessful plaintiffs, they had carried the appeal
under section 96 of the Code of Civil Procedure. The appeal being been
filed beyond the period of limitation, notice to show cause as to why
the said delay in filing the appeal would not be condoned were issued
to the present appellants who were the respondent nos.4 to 7 in the
lower appellate court and also other defendant-respondents. Except
respondent no.3 before the lower appellate court, who is the
defendant nos.3 in the trial court none others appeared pursuant to
the said notice to show cause in the matter of limitation to oppose the
move of getting the delay condoned. The lower appellate court by
order dated 05.04.2013 condoned the delay and by order dated
08.04.2013 admitted the appeal. On that very day, a petition was filed
on behalf of the appellants praying of exemption of service of notice of
hearing of appeal upon the respondent nos.2 to 7 and 10 to 12 on the
ground that since notice in the matter of limitation and condonation of
delay in filing the appeal having been issued and served upon those
respondents and as they did not appear to contest the same, there
remains no need of further service of notice of hearing of appeal on
them. Learned District Judge allowed the petition and called for the
L.C.R. On 11.04.2013, the appeal being heard on merit showing it to
have been so heard on contest in the absence of above noted
respondents before it, the judgment and decree have followed.
4
The appeal has been admitted on the following substantial
questions of law:
(a) “Whether the learned District Judge is right in exempting the
appellant from service of notice of hearing of the appeal upon these
respondents because they being served with the notice to show cause
in the matter of limitation had not appeared to contest the said prayer
for condonation of delay?”
(b) Whether for service of notice to show cause on the question
of condonation of delay in filing the first appeal under section 96 of the
Code of Civil Procedure would amount to service of notice of hearing of
the appeal on being admitted upon condonation of the delay”?
Sub-Rule-2 of Rule 3-A of Order 41 of the Code of Civil Procedure
provides that when an appeal is presented after the expiry of period of
limitation specified therefor, it shall be accompanied by an application
supported by affidavit setting the facts on which the appellant relies to
satisfy the court that he had sufficient cause for not preferring the
appeal within such period. Then Sub-Rule (2) provides that if the court
sees no reason to reject the application without issuance of a notice to
the respondent, notice thereof shall be issued to the respondents and
the matter shall be finally decided by the court, before it proceeds to
deal with the appeal under Rule 11 of the Code.
The notice as has been referred to in Sub-Rule (2) above
certainly refers to the notice in the matter of condonation of delay as
only after the condonation of delay in filing the appeal, the appellate
court as required under Rule 11 would hear the appellant or his
pleader and may either dismiss the appeal or admit the same and fix
the date of hearing of the appeal. A respondent though may not like to
object in the matter of condonation of delay yet may like to contest
the appeal. Simply because the respondent does not appear to contest
in the matter of condonation of delay, it can never be presumed in law
5
that he has nothing to contest the appeal. But where upon due of
service of notice of hearing of appeal, the respondent does not appear
on the date fixed for hearing, the appellate court may proceed to hear
the appeal ex parte and decide it in accordance with law.
It really shocks the judicial conscience of this Court that how a
Senior District Judge have dealt the matter in such a manner
completely ignoring the mandatory provisions of law contained in the
Rule, taking it for granted that service of notice in the matter of
condonation of delay in filing the appeal amounts to service of notice
of hearing of the appeal and has heard the appeal in their absence in
finally allowing the appeal that too as on contest indicating as such in
the judgment as well as the decree. The lower appellate court having
condoned the delay and under the circumstance having not dismissed
the appeal under order 41, rule 11 of the Code, could not have
exempted the appellants from service of notice of hearing of the
appeal upon the respondents in presuming as if they had no mind to
contest the appeal and then finally allowing the appeal as such on
contest in setting aside the judgement and decree passed by the trial
court standing in favour of the respondents. It clearly amounts to
hearing and disposal of the appeal without serving the notice of
hearing of appeal upon the respondents behind their back. Service of
notice fixing the date of hearing of appeal in the case was imperative
being the strict requirement as mandated in law. The Learned District
Judge has thus decided the appeal not only blowing the fundamental
principles of natural justice to the winds but also slaughtering the
mandatory provisions of law at the alter of pavement of the way for
6
allowing the appeal at a hot haste which is unexpected. Thus the order
granting exemption to the appellants from serving notice of hearing of
the appeal upon the respondents clearly amounts to abduction of
judicial conscience and is wholly unsustainable in law. Consequently,
the judgment and decree passed by the lower appellate court upon
hearing of the appeal in the manner as has been done in the case
stand vitiated and are liable to be set aside which this Court hereby
does.
The above discussions thus record the answers to the
substantial questions of law in the negative which leads to allow the
appeal and set aside the impugned judgment and decree passed by
the lower appellate court.
In the wake of aforesaid, the appeal is allowed with cost
throughout. Consequently, the appeal is remitted to the court of the
District Judge, Balasore for hearing of the appeal and its disposal in
accordance with law. The appeal being of the year 2013, in order to
avoid further delay the parties are hereby directed to appear in the
said court on 12.01.2016 to receive further instruction and the learned
District Judge is directed to dispose of the appeal in accordance with
law after hearing the parties within a period of three months
therefrom. Registry is directed to communicate a copy of this
judgment to the Judicial Officer concerned as also to all the District
Judges of the State for information.
******
7
3. Section 100 of CPC
Section 2 (2) Hindu Succession Act 1956
The Hindu Woman’s right to property Act, 1937
Menja Naik Vs. Bhima Naik and others.
D. DASH, J.
In the High Court of Orissa: Cuttack.
Date of Judgment- 03.12.2015
Issue
Applicability of Hindu Woman’s right to property Act, 1937
with reference to Section 2 (2) of Hindu Succession act 1956
for Schedule Tribes .
Relevant Extract
The plaintiff’s case is that the parties are members of Schedule
Tribe and as such are governed under Mitakshara School of Hindu Law.
It is stated that one Samu Naik was the common ancestor and the
land under item no.I of schedule ‘B’ of the plaint stood recorded in his
name. He died leaving behind his four sons namely, Jagai, Jatua,
Ramei and Sandu. On the death of Samu, all his sons jointly
succeeded and possessed the said property. In the state of jointness,
Jatua and Sandu died unmarried. So, Jagai and Ramei for sometime
remained joint and cultivated the properties. After sometime for the
sake of convenience, they resided separately and cultivated separate
parcels of landed properties. It is stated that there was never any
partition in metes and bounds between them. When such was the
state of affair Ramei died leaving behind his only son Samu who
cultivated the land under the cultivation of his father. Thereafter, Jagai
also died leaving behind the defendants as his heirs. Accordingly, they
possessed the land under the possession of their father. In the current
settlement operation, the lands have been jointly recorded which have
been better described in item no. II of schedule ‘B’ of the plaint. The
plaintiff is the widow of Samu and he had four daughters. The plaintiff
after the death of Samu when wanted for inclusion of her name as well
as the names of her daughters in place of her husband Samu, in the
Hal Record of Right and for that sought for the consent of the
8
defendants, it was refused. So, she filed suit for partition of the
properties as described in item no.II of schedule ‘B’ of the plaint.
The defendant nos. 1 to 4 admitted the genealogy and the
relationship between the parties. They projected a case that the
original ancestor Samu died 65 years prior to the suit leaving behind
four sons who inherited the property under Sabik Khata No. 85 and
jointly possessed for some years. It is not stated that after sometime
four sons effected amicable partition and divided the property by
metes and bounds and accordingly, they remained in separate mess
and estate. Two years thereafter Jatua one of the sons of Samu
reunited with his brother Jagai and then Jatua died in the year 1945
without leaving any issue. So, his widow was maintained by Jagai. It is
also stated that Sandu too died issueless and had reunited with Jagai.
Therefore, Jagai and his sons remained in possession of the share of
Jagai as well as those of Jatua and Sandu. Jagai died in the year 1972
and after his death, the present defendants being his sons inherited
and possessed the land described in the schedule ‘M’ of the written
statement. It is next stated that the husband of the plaintiff namely,
Samu died 11 years prior to the suit leaving behind the plaintiff and a
completed partition had taken place in the family. It is alleged that the
plaintiff being induced by her son-in-laws has filed the suit. They also
made a counter claim for declaration that they are the lawful owners of
the ‘M’ schedule properties as described in the written statement.
Defendant no. 5 has filed a separate written statement in which it is
stated that there being a previous partition, the suit for partition is not
maintainable.
The trial court having framed seven issues has first answered
issue no.1. Upon discussion of evidence in the light of the pleadings, it
has recorded the answer that there was no partition between Ramei,
Jagai and his brother. Coming to issue no. 5 as regards the partiability
of the property described in item no. II of schedule ‘B’ as per Hal
Settlement corresponding to item no. I of schedule ‘B’ of the Sabik
settlement, finding has been rendered in the affirmative. So far as the
9
counter claim of the defendant nos. 1 to 4 is concerned, under issue
no. 4, the same has been negative Answers on the rest of the issues
have accordingly followed the suite. The unsuccessful defendants filed
two appeals which were numbered as RFA NO. 14 of 2007 and 15 of
2007, one against the preliminary decree passed in the suit and the
other one as against the dismissal of the counter claim. The lower
appellate court by the common judgment has disposed of those two
appeals in finally non-suiting the plaintiff. Perusal of the judgment of
the lower appellate court reveals that the lower appellate court has
affirmed all the findings of the trial court on factual aspects. It has
held that there was no previous partition. This finding has been
recorded upon independent analysis of evidence in the backdrop of the
rival pleadings. Next finding has been rendered that the defendants
have no right, title and interest over the property described in the
schedule ‘M’ of the written statement to the exclusion of others.
However, coming to the maintainability of the suit, the lower appellate
court has said as under:“The Hindu Woman’s right to property Act, 1937 provided for
partition by a widow in respect of limited interest otherwise known as
widow’s estate. But the said act was reappealed by Hindu Succession
Act, 1956. As the Hindu Woman’s right to property Act, 1937 has been
re-appealed, the widow of a Hindu family cannot damage a partition
under the said Act. The Hindu Succession Act, 1956, is not applicable
to the parties, as they belong to schedule tribe. Hence, in the present
case, the Old Hindu Law is applicable to the parties and in the old
Hindu Law, the widow cannot maintain a suit for partition. Hence, the
present plaintiff, who is a tribal lady and the widow of Samu, cannot
10
maintain the suit for partition. Hence, the suit for partition before the
lower court is not maintainable.” A bare reading of the aforesaid
clearly exposes sheer ignorance on the part of the learned Addl.
District Judge not only with regard to a statutory provision which he
has discussed as holding the field but also the lack of rudimentary
knowledge in the field of interpretation of statute as also in the matter
of appreciation of the provisions contained in the relevant statutes in
reading those properly with due application of mind.
The Hindu Woman’s Right to Property Act, 1937 came into force
in the area of Ex-State of Mayurbhanj with effect from 01.01.1949 ( as
has been held by me with detail discussion as regards the history as
also the object and reasons of the legislation, in case of “Kuili Majhiani
vs. Salia Majhi and Others”; 2015 (I) CLR 581. The provisions of the
said Act brought about the concept limited ownership of the females in
respect of the interest of the males whose heirs they are, over the
coparcener property and it conferred the right to claim partition
thereafter. The provisions of this Act came to be applied to all those
Hindus governed under the traditional Hindu Law. Hindu Succession
Act, 1956 came into force on 17.6.56. The very section relating to the
application of the provisions of the Act i.e. Section 2 in Sub-section 2
provides as under:“(2) Notwithstanding anything contained in sub-section (1),
nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of Article 366 of the
Constitution unless the Central Government, by notification in the
Official Gazette, otherwise directs.”
11
Admittedly, in the case in hand, the parties are members of
Schedule Tribe. Thus, in view of above, the provisions of Hindu
Succession Act have no applicability to them in respect of intestate
succession. The Act in Section 4 provides its over-riding effect which
reads as under :“4. Over-riding effect of Act. –
(1) Save as otherwise expressly provided in this Act,(a) any text, rule or interpretation of Hindu law or any custom or
usage
as
part
of
that
law
in
force
immediately
before
the
commencement of this Act shall cease to have effect with respect to
any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of
this Act shall cease to apply to Hindus in so far as it is inconsistent
with any of the provisions contained in this Act.”
The very plain and simple reading of all these provisions leaves
no room for doubt that the provisions of the Hindu Woman’s Right to
Property Act, 1937 are over-ridden by the provisions of Hindu
Succession Act, 1956 but that is certainly so far as those Hindus to
whom the provisions of Hindu Succession Act, 1956 apply but not for
those to whom the provisions of the Hindu Succession Act, 1956 do
not at all apply. When the Act overrides an earlier Act and that very
Act does not apply to members of a particular Tribe to whom that
earlier Act was applicable, it is preposterous to even think for a
moment that said earlier Act would stand repealed also for them who
are not governed by the Act which contains an over-riding provision.
So for them, the provisions of Hindu Woman’s Right to Property Act.
1937 can never be said to have been over-ridden and such Act still
12
very much holds the field in so far as the members of the Scheduled
Tribe within the meaning of clause-25 of Article 366 of the Constitution
are concerned until and unless Central Government by notification in
the Official Gazette, otherwise directs which has not yet been done.
The over-riding provision will come into play for them who are
governed by the provisions of the Act which contains such provisions
but how can it be so read for being applied to those who are not
governed by the subsequent Act so as to say that even the right
conferred upon them under earlier Act has been taken away by the
subsequent Act which has even no applicability for those. Therefore, I
have the least hesitation to say that such a view taken by the learned
Addl. District Judge that the provisions of Hindu Woman’s Right to
Property Act, 1937 have stood repealed by the provisions of Hindu
Succession Act, 1956 also for those who are not governed by the
Hindu Succession Act, 1956 is wholly erroneous. The provisions of
Hindu Succession Act, 1956 do not apply to the Scheduled Tribe. It
has to be borne in mind that Hindu Succession Act, 1956 has not at all
taken away the right conferred upon the Hindu Widows by virtue of
Hindu Women’s Right to Property Act, 1937 but it has rather enlarged
the rights in making the limited right as absolute with the right to seek
partition giving a complete good bye to the concept of limited right
introduced by Hindu Women’s Right to Property Act, 1937. The Hindu
widows belonging to Schedule Tribe are no doubt governed by old
Hindu Law but with the provisions of Hindu Women’s Right to property
Act, 1937 fully remains in force for them so as to be enjoyed with all
the rights conferred there under. Thus those widows cannot maintain a
suit for partition as has been held by the learned Additional District
13
Judge is palpably wrong and cannot be allowed to stand for a fraction
of a second as it has the devastating consequences. The learned Addl.
District Judge having taken such a view rather has gone to hold that
though the widow members of Scheduled Tribe were governed by the
provisions of Hindu Woman’s Right to Property Act, 1937 yet after
commencement of the provisions of Hindu Succession Act, 1956 they
no more enjoy the rights conferred under the Hindu Woman’s Right to
Property Act, 1937 and when Hindu widows who are governed by
Hindu Succession Act, 1956 were enlarged with their rights, yet those
Hindu widows belonging to Scheduled Tribes were stripped of even
their right conferred upon them by Hindu Women’s Right to Property
Act, 1937. Thus, by coming to such a faulty conclusion, the learned
Addl. District Judge has rather gone to hold that the rights conferred
upon Hindu widows by virtue of the provisions of Hindu Woman’s Right
to Property Act, 1937 have stood abrogated for the widows who are
Scheduled Tribe and thus they have been divested. It’s true that under
the old Hindu Law partition of the coparcenery property at the instance
of a Hindu widow was not maintainable and they were having the right
to claim maintenance with further right to have charge over the
interest of their husband over said coparcenery property for realization
of maintenance dues. So more importantly as the first progressive
legislation to remove gender bias to some extent as the mark of
beginning, in order to confer that right to claim partition upon the
widow with the concept of limited right/ownership for them, there was
introduction of the provisions of Hindu Woman’s Right to Property Act,
1937. Really, I am afraid to think that as to how it came to appeal the
judicial mind of the learned Addl. District Judge that when limited
14
ownership matured to absolute so far as the Hindu widows are
concerned who are governed by the provisions of Hindu Succession
Act, 1956 as to how by virtue of commencement of that very Hindu
Succession Act, 1956 such right to claim partition and limited
ownership of Hindu widows belonging to Scheduled Tribe to whom the
provisions of Hindu Succession Act 1956 even do not apply would
stand taken way and they would again be deprived of the right to
claim partition conferred upon them by Hindu Woman’s Right to
Property Act, 1937 and thus divested for all times to come. The
learned Addl. District Judge by arriving at such decision has made it
clear that he has conducted the game without being aware of the basic
rules of the said game and for that reason the result has been the
grave illegality in declaring the final result.
The aforesaid discussion and reasons record necessary answer to
the substantial question of law as stated in the foregoing para which
ultimately runs in favour of the plaintiff-appellant and against the
defendants-respondents.
Therefore,
this
Court
expressing
above
concern is constrained to set aside the finding of the lower appellate
court on the above score in holding that the finding that the suit at the
instance of the plaintiff-appellant not maintainable which is vulnerable.
In consequence thereof, the judgment and decree passed by the lower
appellate court are hereby set aside and those passed by the trial
court are restored to hold the field.
In the result, the appeal stands allowed with cost throughout.
The Registry is directed to communicate copy of this judgment to the
concerned Judicial Officer for favour of information.
******
15
4. Sec. 107(1) (d) read with Rule 27 of Order XLI of CPC
A. Andisamy Chettiar Vs. A. Subburaj Chettiar.
Dipak Misra & Prafulla C. Pant , JJ.
In the Supreme Court of India
Date of Judgment - 08.12.2015.
Issue
Circumstances when additional evidence can be adduced.
Relevant Extract
Succinctly stated, facts of this case are that the appellant/plaintiff
instituted Original Suit No. 92 of 2003 before District Munsif,
Virudhunagar, for permanent injunction restraining the defendant from
interfering in his peaceful possession and enjoyment of the property in
suit. It is pleaded in the plaint that originally the property in dispute
was owned by one Gopalsamy Pillai. On 21.08.1963 Gopalsamy Pillai
transferred the property by executing a sale deed in favour of one
Lakshmiammal. Lakshmiammal further transferred the property to
Gurusamy Naicker through deed dated 26.12.1968. Plaintiff’s father
Ayyappan Chettiar purchased the property from Gurusamy Naicker,
and constructed his house. It is further pleaded that Ayyappan
Chettiar executed Will dated 13.12.1990 in favour of the plaintiff, and
after death of his father in 1997, the plaintiff is in exclusive possession
of the property. Alleging that the defendant has no right over the
disputed property, relief of permanent injunction against him is sought
in the suit. Plaintiff Andisamy Chettiar and defendant Subburaj
Chettiar are sons of Ayyappan Chettiar.
On the basis of pleadings of the parties following issues were
framed by the trial court: (i) Whether Ayyappan Chettiar executed a Will in favour of the plaintiff
in respect of the property in suit?
(ii) Whether the plaintiff is entitled to the relief of permanent
injunction?
16
During the pendency of A.S. No. 55 of 2007 before the first
appellate court, an application (I.A. No. 3 of 2008) was moved on
behalf of the plaintiff with following prayer: “Therefore it is just and necessary that this Hon’ble Court be
graciously pleased to direct a scientific investigation to find out
whether the signature of Ayyappan Chettiar, my father in Ex. A-4 is
genuine by comparing the signature of Ayyappan Chettiar, in Ex. A-4
with his admitted signatures in Ex. B-1 to B-3, by a competent handwriting expert, and further direct him to file a report to the scientific
investigation done by him and justice thus rendered.”
Under the scheme of Code of Civil Procedure, 1908 (for short
“the Code”) whether oral or documentary, it is the trial court before
whom parties are required to adduce their evidence. But in three
exceptional circumstances additional evidence can be adduced before
the appellate court, as provided under S. 107(1)(d) read with Rule 27
of Order XLI of the Code. Rule 27 of Order XLI reads as under: “27. Production of additional evidence in Appellate Court. – (1) The
parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But if –
(a) The Court from whose decree the appeal is preferred has refused
to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise of due diligence,
be produced by him at the time when the decree appealed against was
passed, or
(b) The Appellate Court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, or for any
other substantial cause, The Appellate Court may allow such evidence
or document to be produced, or witness to be examined.
17
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission.”
(emphasis supplied)
From the opening words of sub-rule (1) of Rule 27, quoted
above, it is clear that the parties are not entitled to produce additional
evidence whether oral or documentary in the appellate court, but for
the three situations mentioned above. The parties are not allowed to
fill the lacunae at the appellate stage. It is against the spirit of the
Code to allow a party to adduce additional evidence without fulfillment
of either of the three conditions mentioned in Rule 27. In the case at
hand, no application was moved before the trial court seeking scientific
examination of the document (Ex.A-4), nor can it be said that the
plaintiff with due diligence could not have moved such an application
to get proved the documents relied upon by him. Now it is to be seen
whether the third condition, i.e. one contained in clause (b) of sub-rule
(1) of Rule 27 is fulfilled or not.
In view of the law laid down by this Court, as discussed above,
regarding exercise of revisional powers in the matter of allowing the
application for additional evidence, when appeal is pending before the
lower appellate court, the impugned order passed by the High Court
cannot be upheld and the same is set aside. However, to do complete
justice between the parties, we think it just and proper to direct the
first appellate court to decide the application for additional evidence
afresh in the light of observations made by this Court regarding
principles on which such an application can be allowed or rejected. We
order accordingly. We further clarify that we have not expressed any
opinion as to the merits of the case. Accordingly, the appeal is
disposed of. No order as to costs.
******
18
5. Order 1 rule 8 of CPC
Smt. Sita @ Khusi Hasda & Others Vs. State of Orissa & Others.
Biswanath Rath , J.
In the High Court of Orissa: Cuttack.
Date of Order 08.12.2015
Issue
Applicability of the principle and to decide if it will
prejudiced or not.
Relevant Extract
Short fact involved in the case is that the petitioners as plaintiffs
filed the C.S. bearing No.512/1999 praying therein for declaration of
their right, title & interest in respect of the schedule ‘A’ property and
also for permanent injunction against the defendant with specific
direction not to interfere in the peaceful possession of the plaintiffs
petitioners.
During pendency of the civil suit, the plaintiffs-petitioners filed an
application under Order-1, Rule 8 of C.P.C. praying therein for allowing
them to publish the pendency of the suit inviting objection from the
interested parties of the locality in the local news paper on the
premises that while deciding the case of the plaintiffs-petitioners,
rights of others in the locality might be affected.
As appears, the opposite parties-State authorities did not file any
objection except raising verbal objection during hearing of the
application. Further the defendant Nos.3 to 5-the private defendants
appearing in the suit objected the petition on the plea that the suit is
of the year 1999. Bringing certain information based on the
submission in the written statement filed by the defendant Nos.4 & 5
in the year 2006 and particularly the trial of the suit had already been
commenced. Defendants therefore, contended that the applications
should not be allowed at this stage. Considering the rival contentions
of the parties, the trial Court by its order dated 25.06.2010 rejected
the application at the instance of the plaintiffs-petitioners.
The question that falls for consideration of this Court in the
present case is as to whether the provisions of Order 1 Rule 8 are
applicable to the present case or not and further if the plaintiffs are
19
going to be prejudiced in absence of applying the provisions under
Order 1 Rule 8 of C.P.C. and further in absence of which if, there
would be no effective adjudication of the suit ultimately.
Provisions as contained in the Order 1 Rule 8 of C.P.C. reads as
follows :
“8. One person may sue or defend on behalf of all in same
interest.(1) Where there are numerous persons having the same interest
in one suit,—
(a) one or more of such persons may, with the permission of the
court, sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may
sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction
is given under sub-rule (1), at the plaintiff’s expense, give notice of
the institution of the suit to all persons so interested, either by
personal service, or, where, by reason of the number of persons or
any other cause, such service is not reasonably practicable, by public
advertisement, as the court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is
instituted, or defended, under sub rule (1), may apply to the court to
be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned
under sub-rule (1), and no such suit shall be withdrawn under sub-rule
(3) of rule 1 of Order XXIII, and no agreement, compromise or
satisfaction shall be recorded in any such suit under rule 3 of that
Order, unless the court has given, at the plaintiff’s expenses notice to
all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does
not proceed with due diligence in the suit or defence, the court may
substitute in his place any other person having the same interest in
the suit.
20
(6) A decree passed in a suit under this rule shall be binding on
all persons on whose behalf, or for whose benefit, the suit is instituted,
or defended, as the case may be.
Explanation: For the purpose of determining whether the persons
who sue or are sued, or defend, have the same interest in one suit, it
is not necessary to establish that such persons have the same cause of
action as the persons on whose behalf, or for whose benefit, they sue
or are sued, or defend the suit, as the case may be.”
Now coming back to the case of the petitioners as appearing
from the plaint is that while making the schedule ‘A’ property as the
subject matter of suit the petitioners claim declaring their own title
over the disputed property and permanent injunction against the
defendants therein. The further facts as narrated in the plaint at the
instance of the petitioners are that the schedule property was in the
nature of ‘Anabadi’ status. While it was lying fallow, one Madan Majhi
reclaimed that the same is for cultivation purpose. An “Amalanama
Patta” was also granted in favour of the said person on 15.3.1942 by
the landlord. During abolition of the State, the ex-landlord submitted
‘ruffa’ before the Government in favour of the said person and
necessary ‘T.L.’ had been opened in his name and he was in peaceful
possession over the disputed land paying rent to Government and
obtaining receipt thereof. Said Madan Majhi died leaving behind his
only son namely one Sukul Majhi, who remained in possession of the
disputed land until he sold western side Ac.1.00 Dec. in favour of the
Singhrai Majhi, the father of the plaintiffs vide registered sale deed
No.9398 dated 3.07.1963 and handed over the delivery of possession
of the property to the father of the petitioners. Similarly with regard to
a part of C.S. holding 356 Plot No.1048 Ac 0.36 Dec. same was also
sold by one Bhuju Singh in favour of the father of the plaintiffs with
handing over the delivery of possession by virtue of R.S.D. No.520
dated 28.01.1970. Other portion of the land under C.S. holding 356,
Plot No.1048 measuring Ac. 0.25 Dec was also sold in favour of the
father of the petitioners vide R.S.D. No.3514 dated 26.06.1973. It is
also further contended in the suit that the plaintiffs’ father also got
another patch of land measuring Ac.0.23 Dec. by the original allottee
21
namely Deba Pradhan by virtue of Registered Sale Deed No.4896 of
13.11.1973. Father of the petitioners’ reclaimed another patch of land
from C.S. holding 356 is for cultivating purpose. On his prayer, the exlandlord issued “Amalanama Patta” in his favour on 20.03.1941. After
death of the father, the present petitioners are continuing to possess
the land peacefully by paying rent to the Government and also
obtaining receipt thereof.
The plaintiffs-petitioners claimed their right over the above
portion of the land by virtue of the possession flown from the
Registered Sale Deed as well as their father’s own possession in
relation to a portion of the suit land. The plaintiffs claimed that
defendant have no manner of right, title, interest for interfering in
their possession.
In view of the facts as narrated in the plaint, it is amply clear
that the petitioners have a clear case of their own possession over the
disputed land and further they have also a very clear case against the
particular defendants in the suit. There is no iota of pleading involving
any other person in the claim of the petitioners. Therefore, looking to
the plaint averments and the prayers made therein and from whole
reading of the plaint, this Court is of the opinion that the suit does not
involve anybody else. Accordingly, this Court finds there is no
application of Order 1 Rule 8 of C.P.C. to the present suit and the
application at the instance of the plaintiffs was a misconceived one.
In view of the findings arrived hereinabove, this Court finds the
application under Order 1 Rule 8 is a misconceived one. Since the
petitioners have failed in satisfying the ingredients of the Order 1 Rule
8 of C.P.C., the application at the instance of the plaintiffs is bound to
fail, consequently, this Court declines to interfere in the impugned
order rejecting such application of the petitioners.
The writ petition stands dismissed for having no merit. However,
there shall be no order as to cost.
******
22
6. Order 7, Rule 11 read with Section 151 of C.P.C.
The Co-operative Sugar Industries Ltd. Vs. M/s.Dharani Sugar and
Chemicals Ltd.
Dr. A. K. RATH, J.
In the High Court of Odisha, Cuttack.
Date of Judgment: 18.12.2015
Issue
Paying of court fees etc. and exemption of it – the Legality
thereof.
Relevant Extract
Shorn of unnecessary details, the short facts of the case are that
the petitioner is a Cooperative Society, registered under the Orissa
Cooperative Societies Act, 1962. The Society established a sugar
industry at Panipoila in the district of Nayagarh for manufacturing of
sugar. The industry became sick and was given on lease to the
opposite party by an agreement dated 12.1.1991. As per the
agreement, the opposite party was liable to pay the minimum charge
@ Rs.50 lakh per annum except the first year i.e., 1990-91 and also
pay the royalty on the quantity of sugar cane crushed. Since the
opposite
party
made
default
in
payment,
the
agreement
was
terminated in the year 1998. Thereafter the petitioner as plaintiff
instituted M.S.No.149 of 2001 in the court of the learned Civil Judge
(Sr.Division),
Bhubaneswar
impleading
the
opposite
party
as
defendant for recovery of Rs.23,76,37,000/- towards outstanding
liability. Court fee of Rs.71,30,305/- was payable on the plaint. Relying
on the notification of the Government of Orissa dated 7.6.1994 issued
under Section 35 of the Court Fees Act, 1870, an application was filed
to exempt it from paying the court fees. It is stated that the plaintiffindustry was running on heavy loss and could not make payments to
23
its workers as well as employees. As the financial condition of the
industry was in doldrums, it could not pay even interest on the loans
incurred from different financial institutions. The industry had been
closed since 2000- 2001. It sustained heavy loss and there was no
surplus income to pay the court fees. The annual income of the
industry was much less than Rs.12,000/- per annum. By order dated
20.11.2002, vide Annexure-4, the learned trial court allowed the
petition and exempted the plaintiff from payment of court fees.
Pursuant to issuance of summons, the defendant entered
appearance and filed the written statement along with counter claim.
The defendant filed an application purported to be under Order 7, Rule
11 of C.P.C. read with Section 151 of C.P.C. praying, inter alia, to
recall the order dated 20.11.2002 and direct the plaintiff to pay court
fees as per valuation of the suit. An ancillary prayer was also made
that if the plaintiff fails to pay the required court fees within the time
stipulated by the court, the plaint be rejected. The plaintiff filed an
objection to the same. It is stated that the petition does not come
under any provision of Order 7, Rule 11 C.P.C. Further, payment of
court fees is a matter between the plaintiff and the State and the
defendant cannot challenge the same. By order dated 20.7.2005, the
learned trial court allowed the application filed by the defendant and
directed the plaintiff to pay court fees on the valuation of the suit
within a month.
24
The following points emerge for consideration of this Court
(1) Whether the defendant has any locus standi to challenge the order
of the learned Additional District Judge (FTC No.-III), Bhubaneswar
exempting the plaintiff from payment of court fees ?
(2) Whether the word ‘person’ appearing in Clause (vi) of the
notification dated 7.6.1994 issued by the Government of Orissa under
Section 35 of the Court Fees Act, 1970 includes juridical person ?
(3) Whether the annual income of the plaintiff exceeds Rs.12,000/enabling it from exemption of court fees under the aforesaid
notification ?
In Mahasay Ganesh Prasad Ray and another Vrs. Narendra Nath
Sen and others, AIR 1953 SC 431, the apex Court held that the
payment of court fees is a matter primarily between the plaintiff and
Government. The said dicta was reiterated in Sri Rathnavarmaraja Vrs.
Smt.Vimla, AIR 1961 Supreme Court 1299. In paragraph-2 of the said
report, the apex Court held as follows:“(2) The Court-fees Act was enacted to collect revenue for the
benefit of the State and not to arm a contesting party with a weapon
of defence to obstruct the trial of an action. By recognising that the
defendant was entitled to contest the valuation of the properties in
dispute as if it were a matter in issue between him and the plaintiff
and by entertaining petitions preferred by the defendant to the High
Court in exercise of its revisional jurisdiction against the order
adjudging court-fee payable on the plaint, all progress in the suit for
the trial of the dispute on the merits has been effectively frustrated for
nearly five years. We fail to appreciate what grievance the defendant
can make by seeking to invoke the revisional jurisdiction of the High
25
Court on the question whether the plaintiff has paid adequate courtfee on his plaint. Whether proper court-fee is paid on a plaint is
primarily a question between the plaintiff and the State. How by an
order relating to the adequacy of the court-fee paid by the plaintiff,
the defendant may feel aggrieved, it is difficult to appreciate. Again,
the jurisdiction in revision exercised by the High Court under S. 115 of
the Code of Civil Procedure is strictly conditioned by cls. (a) to (c)
thereof and may be invoked on the ground of refusal to exercise
jurisdiction vested in the
Subordinate
Court
or
assumption of
jurisdiction which the court does not possess or on the ground that the
court has acted illegally or with material irregularity in the exercise of
its jurisdiction. The defendant who may believe and even honestly that
proper court-fee has not been paid by the plaintiff has still no right to
more the superior courts by appeal or in revision against the order
adjudging payment of court-fee payable on the plaint. But counsel for
the defendant says that by Act 14 of 1955 enacted by the Madras
Legislature which applied to the suit in question, the defendant has
been invested with a right not only to contest in the trial court the
issue whether adequate court-fee has been paid by the plaintiff, but
also to move the High Court in revision if an order contrary to his
submission is passed by the court. Reliance in support of that
contention is placed upon sub-sec. (2) of S. 12. That subsection, in so
far as it is material, provides :
"Any defendant may, by his written statement filed before the
first hearing of the suit or before evidence is recorded on the merits of
the claim plead that the subject matter of the suit has not been
properly valued or that the fee paid is not sufficient. All questions
26
arising on such pleas shall be heard and decided before evidence is
recorded affecting such defendant, on the merits of the claim. If the
court decides that the subject-matter of the suit has not been properly
valued or that the fee paid is not sufficient, the court shall fix a date
before which the plaint shall be amended in accordance with the
court's decision and the deficit fee shall be paid... ."
The Constitution Bench of the Supreme Court in the case of
Islamic Academy of Education and another v. State of Karnataka and
others, AIR 2003 SC 3724 has restated the well settled principle of
precedent. The apex Court held that a judgment, it is trite, is not be
read as a statute. The ratio decidendi of a judgment is its reasoning
which can be deciphered only upon reading the same in its entirety.
The ratio decidendi of a case or the principles and reasons on which it
is based is distinct from the relief finally granted or the manner
adopted for its disposal. It is further held that a decision is an
authority for what it decides and not what can be logically deduced
therefrom. In Padmasundara Rao (Dead) and others v. State of Tamil
Nadu and others, AIR 2002 SC 1334, in paragraph-8 of the said
report, the apex Court held that there is always peril in treating the
words of a speech or judgment as though they are words in a
legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case.
Circumstantial flexibility, one additional or different fact may make a
world of difference between conclusions in two cases. Thus, the
aforesaid cases are distinguishable.
Resultantly, the petition is allowed. The order dated order dated
20.7.2005 passed by the learned A.D.J., F.T.C.No.3, Bhubaneswar in
M.S.No.87 of 2004/149 of 2001 is quashed and the petitioner is
exempted from payment of court fees.
******
27
7. Order VII Rule 11 & Order VII Rule 13 of CPC
Order XXXII Rules 3, 10 and 11 of the CPC.
Shreya Vidyarthi Vs. Ashok Vidyarthi & Ors.
Ranjan Gogoi & N.V. Ramana, JJ.
In the Supreme Court of India.
Date of Judgment -16.12.2015
Issue
Dismissal of suit for failure to pay the requisite Court Fee
and non –appointment of guardian and it’s maintainability.
Relevant Extract
In the year 1937 one Hari Shankar Vidyarthi married Savitri
Vidyarthi, the mother of the respondent-plaintiff. Subsequently, in the
year 1942, Hari Shankar Vidyarthi was married for the second time to
one Rama Vidyarthi. Out of the aforesaid second wedlock, two
daughters, namely, Srilekha Vidyarthi and Madhulekha Vidyarthi
(defendants 1 and 2 in Suit No. 630 of 1978) were born. The
appellant-eighth defendant Shreya Vidyarthi is the adopted daughter
of Srilekha Vidyarthi (since deceased) and also the legatee/ beneficiary
of a Will left by Madhulekha Vidyarthi.
The dispute in the present case revolves around the question
whether the suit property, as described above, was purchased by sale
deed dated 27.9.1961 by Rama Vidyarthi from the joint family funds or
out of her own personal funds. The suit property had been involved in
several previous litigations between the parties, details of which may
now require a close look.
In the year 1968 Suit No. 147/1968 was instituted by Savitri
Vidyarthi (mother of the respondent-plaintiff) contending that the suit
property being purchased from the joint family funds a decree should
be passed against the daughters of Rama Vidyarthi from interfering
with her possession. This suit was dismissed under the provisions of
Order VII Rule 11 CPC on account of failure to pay the requisite court
fee. In the said suit the respondent-plaintiff had filed an affidavit dated
24.2.1968 stating that he had willfully relinquished all his rights and
28
interests, if any, in the suit property. The strong reliance placed on the
said affidavit on behalf of the appellant in the course of the arguments
advanced on her behalf needs to be dispelled by the fact that an actual
reading of the said affidavit discloses that such renunciation was only
in respect of the share of Rama Devi in the suit property and not on
the entirety thereof. Consistent with the above position is the suit filed
by the respondent-plaintiff i.e. Suit No. 21/70/1976 seeking partition
of the joint family properties. The said suit was again dismissed under
the provisions of Order VII Rule 11 CPC for failure to pay the requisite
court fee. It also appears that Rama Vidyarthi the predecessor-ininterest of the present appellant had filed Suit No. 37/1969 under
Section 6 of the Specific Relief Act for recovery of possession of two
rooms of the suit property which, according to her, had been forcibly
occupied by the present respondent-plaintiff. During the pendency of
the aforesaid suit i.e. 37/1969 Rama Vidyarthi had passed away. The
aforesaid suit was decreed in favour of the legal heirs of the plaintiffRama Vidyarthi namely, Srilekha and Madhulekha Vidyarthi on
4.2.1976.
It is in the aforesaid fact situation that the suit out of which the
present appeals have arisen i.e. Suit No. 630 of 1978 was filed by the
present respondent-plaintiff impleading Srilekha Vidyarthi (mother of
the appellant) and Madhulekha Vidyarthi (testator of the Will in favour
of the appellant) as defendants 1 and 2 and seeking the reliefs earlier
noticed.
Certain facts and events which had occurred during the pendency
of the appeal before the High Court will require a specific notice as the
same form the basis of one limb of the case projected by the appellant
before us in the present appeal, namely, that the order of the High
Court is an ex-parte order passed without appointing a legal guardian
for the appellant for which reason the said order is required to be set
aside and the matter remanded for a de novo consideration by the
High Court.
The first significant fact that has to be noticed in this regard is
the death of Madhulekha Vidyarthi during the pendency of the appeal
and the impleadment of the appellant as the 8th respondent therein by
29
order dated 31.08.2007. This was on the basis that the appellant is the
sole legal heir of the deceased Madhulekha. The said order, however,
was curiously recalled by the High Court by another order dated
10.10.2007. The next significant fact which would require notice is that
upon the death of her mother Srilekha Vidyarthi, the appellantdefendant herself filed an application for pursuing the appeal in which
an order was passed on 16/18.05.2009 to the effect that the appellant
is already represented in the proceedings through her counsel (in view
of the earlier order impleading the appellant as legal heir of
Madhulekha). However, by the said order the learned counsel was
given liberty to obtain a fresh vakalatnama from the appellant which,
however, was not so done. In the aforesaid fact situation, the High
Court proceeded to consider the appeal on merits and passed the
impugned judgment on the basis of consideration of the arguments
advanced by the counsel appearing on behalf of the appellant at the
earlier stage, namely, one Shri A.K. Srivastava and also on the basis
of the written arguments submitted on behalf of the deceased Srilekha
Vidyarthi. It is in these circumstances that the appellant has now, inter
alia, contended that the order passed by the High Court is without
appointing any guardian on her behalf and contrary to the provisions
of Order XXXII Rules 3, 10 and 11 of the CPC. Having heard learned
counsels for the parties, we find that two issues in the main arise for
determination in these appeals. The first is whether the High Court
was correct in passing the order dated 24.11.2009 on the recall
application filed by the appellant and whether, if the appellant had
really been proceeded ex-parte thereby rendering the said order
untenable in law, as claimed, should the matter be remitted to the
High Court for reconsideration. The second question arising is with
regard to the order dated 12.08.2009 passed by the High Court in First
Appeal No. 693 of 1987 so far as the merits thereof is concerned.
The detailed facts in which the appellant-8th defendant came to
be impleaded in the suit following the death of Madhulekha Vidyarthi
(defendant No. 2) and thereafter on the death of Srilekha Vidyarthi
(defendant No. 1) has already been seen. From the facts recorded by
the High Court in its order dated 24.11.2009 it is clear and evident
30
that the appellant had participated in the proceeding before the High
Court at various stages through counsels. Therefore, there is no
escape from the conclusion that the order passed in the appeal was
not an ex-parte order as required to be understood in law. The
appellant was already on record as the legal heir of Madhulekha
Vidyarthi (defendant No. 2) and was represented by a counsel. The
High court had passed its final order after hearing the said counsel and
upon consideration of the written arguments filed in the case. In its
order dated 24.11.2009 the High Court has observed that full
opportunity of hearing on merits was afforded to the appellant. Even
before us, the appellant has been heard at length on the merits of the
case. In these circumstances there can hardly be any justification to
remand the matter to the High Court for a fresh consideration by
setting aside the impugned order.
The fact that the family was peacefully living together at the time
of the demise of Hari Shankar Vidyarthi; the continuance of such
common residence for almost 7 years after purchase of the suit
property in the year 1961; that there was no discord between the
parties and there was peace and tranquility in the whole family were
also rightly taken note of by the High Court as evidence of existence of
a joint family. The execution of sale deed dated 27.9.1961 in the name
of Rama Vidyarthi and the absence of any mention thereof that she
was acting on behalf of the jointfamily has also been rightly construed
by the High Court with reference to the young age of the plaintiffrespondent (21 years) which may have inhibited any objection to the
dominant position of Rama Vidyarthi in the joint family, a fact also
evident from the other materials on record. Accordingly, there can be
no justification to cause any interference with the conclusion reached
by the High Court on the issue of existence of a joint family.
While there can be no doubt that a Hindu Widow is not a
coparcener in the HUF of her husband and, therefore, cannot act as
Karta of the HUF after the death of her husband the two expressions
i.e. Karta and Manager may be understood to be not synonymous and
the expression “Manager” may be understood as denoting a role
31
distinct from that of the Karta. Hypothetically, we may take the case of
HUF where the male adult coparcener has died and there is no male
coparcener surviving or as in the facts of the present case, where the
sole male coparcener (respondent-plaintiff - Ashok Vidyarthi) is a
minor. In such a situation obviously the HUF does not come to an end.
The mother of the male coparcener can act as the legal guardian of the
minor and also look after his role as the Karta in her capacity as his
(minor’s) legal guardian. Such a situation has been found, and in our
opinion rightly, to be consistent with the law by the Calcutta High
Court in Sushila Devi Rampuria v. Income Tax Officer and Anr. AIR
1959 Cal 697 rendered in the context of the provisions of the Income
Tax Act and while determining the liability of such a HUF to
assessmentunder the Act. Coincidently the aforesaid decision of the
Calcutta High Court was noticed in Commissioner of Income Tax vs.
Seth Govindram Sugar Mills Ltd.
A similar proposition of law is also to be found in decision of the
Madhya Pradesh High Court in Dhujram v. Chandan Singh & Ors. 1974
MPL J554 though, again, in a little different context. The High Court
had expressed the view that the word ‘Manager’ would be consistent
with the law if understood with reference to the mother as the natural
guardian and not as the Karta of the HUF.
In the present case, Rama Vidyarthi was the step mother of the
respondent-plaintiff -Ashok Vidyarthi who at the time of the death of
his father - Hari Shankar Vidyarthi, was a minor. The respondent
plaintiff was the only surviving male coparcener after the death of Hari
Shankar Vidyarthi. The materials on record indicate that the natural
mother of Ashok Vidyarthi, Smt. Savitri Vidyarthi, had played a
submissive role in the affairs of the joint family and the step mother,
Rama Vidyarthi i.e. second wife of Hari Shankar Vidyarthi had played
an active and dominant role in managing the said affairs. The
aforesaid role of Rama Vidyarthi was not opposed by the natural
mother, Savitri Vidyarthi. Therefore, the same can very well be
understood to be in her capacity as the step mother of the respondent32
plaintiff-Ashok Vidyarthi and, therefore, consistent with the legal
position which recognizes a Hindu Widow acting as the Manager of the
HUF in her capacity as the guardian of the sole surviving minor male
coparcener. Such a role necessarily has to be distinguished from that
of a Karta which position the Hindu widow cannot assume by virtue of
her dis-entitlement to be a coparcener in the HUF of her husband.
Regrettably the position remain unaltered even after the amendment
of the Hindu Succession Act in 2005.
In the light of the above, we cannot find any error in the ultimate
conclusion of the High Court on the issue in question though our
reasons for the aforesaid conclusion are somewhat different.
Before parting we may note that the history of the earlier
litigation between the parties involving the suit property would not
affect the maintainability of the suit in question (630 of 1978). Suit
No.37 of 1969 filed by Rama Vidyarthi was a suit under Section 6 of
the Specific Relief Act whereas Suit No.147 of 1968 and Suit No.
21/70/1976 filed by first wife Savitri Vidyarthi and Ashok Vidyarthi,
respectively, were dismissed under Order VII Rule 11 CPC on account
of non-payment of court fee. In these circumstances, the suit out of
which the present appeal has arisen i.e. Suit No. 630 of 1978 was
clearly maintainable under Order VII Rule 13 CPC. The apportionment
of shares of the parties in the suit property made by the High Court, in
the manner discussed above, also does not disclose any illegality or
infirmity so as to justify any correction by us. It is our considered view
that having held and rightly that the suit property was a joint family
property, the respondent-plaintiff was found entitled to seek partition
thereof and on that basis the apportionment of shares in the suit
property between the plaintiff and the contesting eighth defendant was
rightly made by the High Court in accordance with the reliefs sought in
the suit.
For the aforesaid reasons, we do not find any merit in these
appeals, the same are being accordingly dismissed. However, in the
facts of the case we leave the parties to bear their own costs.
******
33
8. Order 39 Rules 1 and 2 read with Section 151 of the C.P.C.
Smt. Basanti Paikaray Vs. Dr. Prananath Paikaray & others
K.R. Mohapatra, J.
In the High Court of Orissa: Cuttack
Date of Judgment: 11.12.2015
Issue
Temporary injunction and the conditions necessary
required.
Relevant Extract
It is the case of the plaintiff that Ketaki Dei, the mother-in- law
of the plaintiff, out of love and affection had executed a registered gift
deed no. 583 dated 19.3.1982 in favour of the plaintiff in respect of
Ac. 0.625 decimals of land, which was her (Ketaki’s) self-acquired
property. Said Ketaki also delivered possession thereof to the plaintiff.
Subsequently, the defendant no. 1, who is none other than the
brother-in-law (Diara) of the plaintiff, by practicing fraud created a
registered deed of revocation of the aforesaid gift deed on 31.3.1982
without
the
knowledge
of
the
plaintiff.
Therefore,
by
misrepresentation, said defendant no. 2 took signatures of the
plaintiff, her husband and father-in-law and created two registered gift
deeds purportedly executed by Ketaki vide registered gift deed no. 809
dated 15.4.1982 donating Ac. 0.224 decimals of land in his favour and
registered gift deed no. 810 dated 15.4.1982 donating Ac. 0.401
decimals of land in favour of the plaintiff, which was the subject matter
of the gift deed dated 19.3.1982. After obtaining the Gift Deed No.
809 dated 15.4.1982, the defendant no. 1 executed a registered Power
of Attorney on 20.4.2002 in favour of defendant no.
The defendant no. 2 by virtue of the said Power of Attorney
executed two registered sale deeds i.e. RSD No. 334 dated 5.2.2003
for an area of Ac. 0.112 decimals in favour of defendant no. 3 and RSD
No. 335 dated 5.2.2003 for an area of Ac. 0.112 decimals of land in
favour of defendant no. 4. After the death of Ketaki on 21.7.1991 and
her husband (father-in-law of the plaintiff) late Uchhab Paikray on
24.3.1993, the defendant no. 1 created disturbance in the peaceful
34
possession of the plaintiff in respect of the land in question and
building standing thereon. Thus, the plaintiff filed C.S. No. 466 of 2002
before the learned Civil Judge (Junior Division), Bhubaneswar for
permanent injunction. In the said suit, the plaintiff filed I.A. No. 386 of
2006 in the said suit for temporary injunction and an order of status
quo was passed therein. Subsequently, vide order dated 29.3.2007,
the said order of status quo was vacated for which FAO No. 66 of 2007
has been filed, which is pending consideration. However, due to
alienation of the suit land in favour of the defendant nos. 3 and 4, they
created disturbance in the peaceful possession of the plaintiff and
building standing thereon for which the present suit has been filed for
the aforesaid reliefs. Along with the plaint, the plaintiff filed I.A. No.
457 of 2007 under Order 39 Rules 1 and 2 C.P.C. praying, inter alia, to
restrain the defendant nos. 3 and 4 (respondent nos. 3 and 4 herein)
from entering upon the suit land or any part thereof and from
alienating the suit property.
The defendant nos. 2, 3 and 4 (respondent nos. 2, 3 and 4
herein) filed their objections jointly denying the allegations made in
the plaint as well as in the interim application. They contended that
the suit property was purchased by Ketaki vide RSD No. 2834 dated
19.12.1975. Subsequently, said Ketaki executed a registered Gift Deed
No. 809 dated 15.4.1982 for an area of Ac. 0.224 decimals out of Ac.
0.625 decimals from Khata No. 59 in favour of defendant no. 1
(respondent no. 1 herein) as per family settlement. Since the
defendant no. 1 was serving and residing out of the State, he executed
a registered Power of Attorney in favour of defendant no. 2 to look
after the said property. Accordingly, the defendant no. 2 executed two
sale deeds i.e. registered sale deed nos. 334 and 335n dated 5.2.2003
in favour of defendant nos. 3 and 4 for an area of Ac. 0.112 decimals
each respectively. Since the date of purchase, the defendant nos. 3
and 4 are in peaceful possession of the land, they have purchased.
They further contended that taking advantage of long absence of
defendant no. 2, the plaintiff cunningly managed to obtain a gift deed
in respect of the entire area of Ac. 0.625 decimals from the recorded
35
owner Ketaki vide registered gift deed dated 19.3.1982. When the
defendant no. 1 came to know about the same, he immediately on
31.3.1982 on consent of the plaintiff got the said gift deed cancelled
by Ketaki. Thereafter, on 15.4.1982, the recorded owner, namely,
Ketaki, executed two separate registered gift deeds in favour of
defendant no. 1 for an area of Ac. 0.224 decimals and in favour of the
plaintiff for an area of Ac. 0.401 decimals from out of the suit land.
Both the gift deeds were executed with the knowledge of the plaintiff
and she had put her hand in it. Thus, they claim that the registered
sale deeds executed in favour of defendant nos. 3 and 4 are valid and
they have acquired valid right, title, interest and possession by virtue
of the sale deeds. Thus, they prayed for dismissal of the interim
application.
The learned Civil Judge (Senior Division), Bhubaneswar taking
into consideration the rival contentions of the parties dismissed the
interim application on 15.7.2011, which is under challenge in this
appeal.
This Court while issuing notice on the question of admission, as
an interim measure, directed the parties to maintain status quo as on
that date over the disputed property by order dated 22.9.2011 passed
in Misc. Case No. 616 of 2011. The said order is in force till today.
In order to consider the rival contentions of the parties, it is
profitable to look into the provisions in Section 126 of the Transfer of
Property Act, 1882, which reads as follows:
126. When gift may be suspended or revoked The donor and
donee may agree that on the happening of any specified event which
does not depend on the will of the donor a gift shall be suspended or
revoked; but a gift which the parties agree shall be revocable wholly or
in part, at the mere will of the donor, is void wholly or in part, as the
case may be. A gift may also be revoked in any of the cases (save
36
want or failure of consideration) in which, if it were a contract, it might
be rescinded.
Save as aforesaid, a gift cannot be revoked. Nothing contained in
this section shall be deemed to affect the rights of transferees for
consideration without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with B's assent, the
right to take back the field in case B and his descendants die before A.
B dies without descendants in A's lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B's
assent, the right to take back at pleasure Rs. 10,000 out of the lakh.
The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000,
which continue to belong to A.
From the aforesaid analysis of Section 126 of the Transfer of
Property Act, 1882, it is clear that a gift once accepted cannot be
cancelled unilaterally by the donor without written consent of the
donee. In the instant case, registered deed of cancellation dated
31.3.1982 executed by donor, namely, Ketaki, a copy of which is
annexed to the appeal memo, does not disclose the consent or
agreement of the plaintiff nor bear her signature on the same. Hence,
it appears to be an invalid one. Thus, subsequent acts of the parties
pursuant to the deed of cancellation dated 31.3.1982 cannot be held
to be valid and binding on the plaintiff. True it is that the plaintiff is a
signatory to the registered gift deed no. 809 dated 15.4.1982
executed by Ketaki in favour of defendant no. 1 but the plaintiff has
denied to have given any such consent and pleaded that her
37
signatures were obtained fraudulently. It is a matter of trial and no
opinion can be given on the same at this stage.
Thus, the appellant has a prima facie case in her favour and the
balance of convenience lies in her favour as she has acquired
valuable right and possession over the suit land by virtue of the
Registered Gift Deed No. 583 dated 19.3.1982. The plaintiff-appellant
contended that a residential building standing over the suit land and
she is in possession over the same. Though the defendants deny the
possession of the plaintiff-appellant over the suit land but never
denied the existence of a building over it.
In view of the observation made above, there is every likelihood
of dispossession of the plaintiff-appellant from the suit house, if her
possession is not protected. Nevertheless, this Court while issuing
notice on the question of admission of the appeal vide order dated
22.9.2011 directed the parties to maintain status quo in respect of the
suit land. Thus, the plaintiff-appellant would suffer irreparable loss, if
an order of injunction is not granted.
Taking into consideration the facts and circumstances of the case
as narrated above, I allow this appeal and set aside the impugned
order and direct the parties to maintain status quo in respect of the
suit schedule land till disposal of the suit. It is further directed that to
avoid further complicacy in the matter, the learned Civil Judge shall
make an endeavour to dispose of the suit early and the parties to the
suit are directed to co-operate with the Court for early disposal of the
suit.
******
38
Criminal Procedure code
9. Sections 57,157,167,55A & 482 of Cr.P.C.
Dr. Nirmal Kumar Nayak Vs. State of Odisha
S. K. Mishra , J.
In the High Court of Orissa: Cuttack.
Date of Judgment -09.12.2015
Issue
Application of the provision of Cr.P.C. for arrest and
invoking inherent power for granting bail.
Relevant Extract
The petitioner being the accused in Barbil P.S. Case No.201 of
2015 registered for commission of offence under Section 354-B of the
I.P.C. is knocking the door of the Court stating that there has been
violation of the provisions of Sections 57 and 157 of the Code as he
has
not
been
produced
before
the
learned
Magistrate
having
jurisdiction within 24 hours of his arrest and therefore he is suffering.
It is stated that the petitioner is a Gynecologist of repute and at
present posted as District Malaria Officer in District Headquarters
Hospital, Keonjhar. On 18.10.2015 at 5.30 P.M. one Tolottama Das
lodged a written report before the I.I.C., Barbil Police Station that on
the same day she has come to the Government Hospital for
termination of her pregnancy, but she found that the lady doctor was
absent. Her husband, the present petitioner has examined her and
administered some drugs in her private part and while she was lying in
bed he forcibly pressed her breasts and tried to drag her somewhere
and tried to open the wearing apparels towards upper side with a mala
fide intention. Then the informant raised hullah and her husband and
39
sister-in-law rushed to the spot. On such allegation the present F.I.R.
has been lodged by the informant and accordingly a case has been
registered under Section 354-B of the I.P.C. and the F.I.R. has been
forwarded to the learned J.M.F.C., Barbil and has been registered as
G.R. Case No.659 of 2015.
It is apparent from the records that the Investigating Officer has
arrested the petitioner on 19.10.2015. Then he has been produced
before the Medical Officer, C.H.C., Barbil for medical check up by the
escort party before forwarding to the nearest Magistrate i.e. before the
J.M.F.C., Barbil. After examination of the petitioner, the I.I.C. again
took him to the District Headquarters Hospital, Keonjhar as the
accused was complaining chest pain. Then the doctor has sent an
intimation that the petitioner was found to be hypertensive with chest
pain with high blood pressure. Then the doctor has referred the
petitioner to S.C.B. Medical College, Cuttack on 21.10.2015 for further
evaluation of the diseases detected by him. Then the escort party has
taken the petitioner to the S.C.B. Medical, Cuttack for further
treatment. The
petitioner was admitted to
the
Department
of
Orthopedic through casualty. It is alleged that the I.I.C., Barbil Police
Station has acted beyond the provision of law prescribed under the
statute of the Code of Criminal Procedure.
In the above fact and circumstances, now it is to be decided
whether the non-production of the said petitioner before the learned
J.M.F.C. is illegal, for which appropriate order should be passed for
40
releasing him from the custody. Section 57 of the Code is very clear
that no police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the
case is reasonable, and such period shall not, in the absence of a
special order of a Magistrate under Section 167, exceed 24 hours
exclusive of the time necessary for the journey from the place of arrest
to the Magistrate’s Court. Section 167 of the Code provides that a
person who has been arrested and detained in custody if appears that
the investigation cannot be completed within the period of 24 hours as
fixed under Section 57 of the Code, and there are grounds for
believing that the accusation or information is well founded, the officer
in charge of the police Station or the police officer making the
investigation, if he is not below the rank of Sub-Inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case, and
shall at the same time forward the accused to such Magistrate. SubSection (6) speaks of the duration of such judicial custody to which the
accused can be given. However, in the meantime, Section 55-A of the
Code has been inserted in the criminal Law Amendment Act, 2013 (13
of 2013) w.e.f. 03.02.2013. It reads as follows:
41
“55A. Health and safety of arrested person.- It shall be the duty
of the person having the custody of an accused to take reasonable
care of the health and safety of the accused.”
From a combined reading of the aforesaid directions, this Court is
of the opinion that the Investigating Officer had no option but to take
the petitioner for his health check up and has recommended him in
admitting in hospital, he could not produce the petitioner before the
Magistrate. It is also apparent from the aforesaid practice that the
person who takes a person into custody has the responsibility of taking
reasonable care of the health and safety of the accused. So, the
Investigating Officer has done nothing wrong in keeping the petitioner
admitted to the hospital and for that reason no order can be passed
quashing the arrest. Moreover, fact that the petitioner has been
admitted to the S.C.B. Medical College and Hospital has already been
reported to the learned J.M.F.C., Barbil. So this Court finds no reason
to quash the arrest and direct release of the petitioner. The provision
of Section 482 of the Code should not also be invoked for the purpose
of granting bail to the petitioner. Moreover, since the petitioner’s
arrest has already been reported to the learned Magistrate, it is open
for him to pray for bail before the learned J.M.F.C., Barbil. With the
aforesaid observation, the Criminal Misc. Case is disposed of.
******
42
Indian Penal Code
10. Section 148 & 323 read with 149 of IPC
Hrushikesh Panda and others Vs. State of Orissa
J.P. Das, J.
In the High Court of Orissa: Cuttack
Date of Judgment -24.12.2015
Issue
Sustainability of conviction , when there is a counter case
and admittedly the investigation was not proper.
Relevant Extract
The prosecution case is that on 06.07.1990 at about 10 a.m. the
informant one Panchanan Panda heard that the accused persons being
armed with different weapons had been to one hamlet of the village to
assault one Bijay. The informant rushed to the spot and found the
accused persons standing in front of his house being armed with
different weapons and hurling abuses were calling the said Bijay to
come out of the house. Since Bijay was not there, the informant went
near the accused persons and tried to pacify them but the accused
persons started assaulting him. Seeing the occurrence other persons
nearby including the family members of the informant came running
and they were also assaulted by the accused persons sustaining
injuries. On the same day immediately after the occurrence, the F.I.R.
was lodged at Dhusuri Police Station pursuant to which concerned P.S.
Case
No.46
of
1990
was
registered
under
Sections
147/148/149/323/324/325/326/294 of the I.P.C. and investigation
was taken up. In course of investigation, the injured persons were
medically examined the accused persons were arrested and were also
medical examined since there was a counter case registered for the
43
same occurrence wherein the present accused persons also sustained
serious injuries. Some of the accused persons were arrested and
forwarded to court. After completion of investigation, charge sheet was
placed
against
the
five
appellants
under
Sections
147/148/149/323/324/294, I.P.C.
Since the counter case was committed to the Court of Sessions
having offences triable by the said court, the present case was also
committed to the Court of Sessions for analogous trial.
The learned trial court framed charges only under Sections
148/323/324/294, I.P.C. read with Section 149 of the I.P.C. against all
the five accused persons. The accused persons pleaded not guilty to
the charge with a further plea that they were assaulted by the
informant group.
Suffice it to say that when admittedly there was a counter case
and the accused persons also sustained injuries in course of the same
occurrence it cannot be said that the accused persons voluntarily
caused hurt to the prosecuting parties so as to be liable under Section
323 of the I.P.C. Although admittedly there was a counter case triable
by Court of Sessions and this case was committed to the Court of
Sessions for analogous trial, still nothing has been discussed regarding
the counter case in the impugned judgment so as to hold that the
present appellants were aggressors or exceeded the limit of exercising
their right to self defence in course of the alleged occurrence. It was
more so required since the allegations were more serious against the
informant group in the counter case.
44
The details of the injuries sustained by the accused persons have
been narrated in paragraph-10 of the impugned judgment. There was
absolutely no explanation on behalf of the prosecution as to how the
accused persons sustained injuries and on the other hand as
mentioned in the judgment it was tried to be stated that one of the
accused sustained injuries when one blow aimed at one of the
prosecuting witness fell on him. It needs no citation that un-explained
injuries sustained by the accused persons create doubt in the
prosecution case, especially when allegation of offence is only under
Section 323 of the I.P.C. It has also been observed in the impugned
judgment that the investigation was not proper and the prosecution
witnesses tried to exaggerate the occurrence.
Considering all these facts and circumstances, I am unable to
concur with the findings of the learned trial court that the prosecution
was able to prove the charges beyond all reasonable doubts to hold
that the accused persons were guilty of the offences punishable under
Sections 148 and 323 of the I.P.C. read with Section 149 of the I.P.C.
Accordingly,
the
impugned
judgment
passed
in
Sessions
Case
No.16/79 of 1991 is set aside and the accused appellants are set at
liberty being discharged of their bail bonds furnished at the time of
admission of the appeal. Accordingly, the criminal appeal stands
disposed of.
******
45
11. Section 302, 364, 201, 120B of IPC.
State of Punjab Vs. Bittu & anr. etc.
Pinaki Chandra Ghose & R.K. Agrawal ,JJ.
In the Supreme Court of India.
Date of Judgment -16.12.2015
Issue
Failing to prove the chain of circumstances can be the
ground for acquittal.
Relevant Extract
The brief facts necessary to dispose of these appeals are that on
9.10.2002, a police party headed by SHO Jaswinder Singh, along with
other police officials, was on patrolling duty in the area of truck union,
Bhawanigarh. The complainant Gurdip Singh son of Arjan Singh,
resident of Village Kasba Bharawal, Police Station Malerkotla came
there and got his statement recorded with the SHO Jaswinder Singh,
to the following effect: That on the preceding night at about 2:00
a.m., when he was performing his duty at the Dera Kar Sewa, Balad
Crossing, Bhawanigarh, he saw the accused persons Bittu, Neetu,
Tony, Jagdeep @ Michu and Ashok Kumar @ Rocky (deceased), who
were known to him, coming towards the Dera from Bhawanigarh side.
In the meantime, Harkesh Kumar (PW-2) who was a resident of
Bhawanigarh also came there. Bittu, Neetu, Tony and Michu threw
Ashok Kumar (the deceased) on the floor and placed a big stone on his
chest. They forcibly closed his nose and mouth after which Ashok
Kumar became unconscious. Thereafter, the accused persons dragged
him towards the main road, where his clothes were removed and they
stuffed his mouth with soil. The complainant and Harkesh Kumar
asked the accused persons not to do so. Shortly after that, accused
Jaswant Singh also came there on a Maruti Car bearing No.PB34/1110. He along with other accused, loaded the body of Ashok
Kumar in the car on the pretext that they were going to admit him in
the Civil Hospital, Bhawanigarh. They threatened the complainant and
Harkesh Kumar with dire consequences, if they disclosed the incident
to anybody. In the next morning, the complainant and Harkesh Kumar
46
came to know that the dead body of Ashok Kumar and his clothes
were lying on the road near the Dera of Baba Sham Giri. Upon this
statement of the complainant, a formal FIR was recorded.
After investigation the Police filed its report and the prosecution
presented the challan against the accused persons in the Court of
Additional Chief Judicial Magistrate, Sangrur, on 2.1.2003. Thereafter,
the case was committed to the Court of Sessions Judge, Sangrur. After
considering the material on record and hearing the prosecution and
defence, charges under Sections 120-B, 364, 302 and 201 of the
Indian Penal Code were framed, read over and explained to the
accused persons who pleaded not guilty and claimed for trial.
The Trial Court convicted the accused respondents on the basis
of the prosecution story relying upon the following circumstantial
evidences:i. Testimony of eyewitnesses Narain Dass (PW-5), Gurdeep Singh
(PW-6) and Kashmir Chand (PW-7), is natural and there is no enmity
between them and the accused persons.
ii. The medical evidence corroborates the statements of Narain
Dass (PW-5) and Kashmir Chand (PW-7).
iii. Motive has been proved by the testimony of Kashmir Chand
(PW-7).
The High Court pointed out serious lacunae in the above said
evidences which were considered by the trial court in convicting the
accused and hence the conviction order was set aside as the necessary
benefit of doubt was given to the accused.
The next aspect for consideration before us is the statement of
Narain Dass (PW-5). He stated in his testimony that he, along with one
Sita Ram, had come to Shiv Mandir, Bhawanigarh, for paying
obeisance at around 6:00 a.m. and had witnessed the silver coloured
Maruti car bearing No. PB-34-1110 outside that Mandir. The said car
was being driven by Neetu and all the five accused persons were
present in the car and they stopped the car and threw the dead body
47
of the deceased near a truck which was parked there. They also threw
the clothes of the deceased. He admitted that the deceased was his
real nephew (bhanja). He also stated that after chasing the accused
when he failed to get hold of them, he went back home. He did not
meet the police from 6:00 a.m. to 9:00 a.m. that day. He also stated
that at 6:00 a.m. on that morning, there may be some darkness. His
statements thus lead to an inference that his presence was doubtful.
PW-5 was the real maternal uncle of the deceased and he did not even
bother to check whether the deceased was dead or alive. Also, the fact
that he did not meet the police for 3 hours is a strange fact
considering that his nephew had died. The High Court has discussed in
great volume the discrepancies in the evidence of PW-5 and the time
gap between his seeing the accused and his meeting the police, as per
his allegation. It makes the statement of PW-5 highly doubtful.
The next incriminating fact is the motive behind the crime as has
been established by the testimony of Kashmir Chand (PW-7). He
stated that on 8.10.2002 at about 8:00 p.m. he had gone to see Ram
Leela in Grain Market, Bhawanigarh and had seen the five accused
persons conspiring with one another about finishing Ashok Kumar,
because he was not agreeing to remove his fruit Rehri from the front
of the meat shop of Bittu and Nitu. He also stated that he saw the
accused beating and sitting upon the deceased at about 2:30 a.m. at
night. Even if the motive is clearly established, the fact that PW-7 was
admittedly the friend of the deceased, he ought to have warned the
deceased about such plans of the accused. PW-7 stated that he had
gone to see Ram Leela and came back after 15-20 minutes to his
house, had his meals and later left the house at around 2:00 a.m.
Neither he was named in the FIR nor did he care to warn the deceased
or his family members of the conspiracy that he had overheard. This
makes his conduct highly unnatural and his presence doubtful at the
place of incident. Thus, his statement merely establishes the motive of
the accused.
48
The prosecution failed to prove its case on one more aspect. The
prosecution alleged that the medical evidence corroborates their story.
But the testimony of Dr. Sanjeev Jindal (PW-1), who did the medical
examination of the deceased, does not support this fact. He stated
that the internal injuries of the deceased were such that they may
have been caused by a heavy stone kept on the chest, but he did not
clearly establish the same, in his opinion. He merely said that the
possibility cannot be ruled out. Also, if the incident occurred in the
manner stated in the FIR, sufficient quantity of soil should have been
found in the mouth of the deceased but PW-1 has categorically stated
in his testimony that no soil was found in the mouth of the deceased.
He had merely found some dust sticking to the face of the deceased
which could be caused by merely throwing the dead body on the
ground or even on a metalled road which is dust free.
All the above circumstances lead to the inference that the
prosecution has failed to bring home its case. It appears that the
testimonies of Narain Dass (PW-5) and Kashmir Chand (PW-7) are
highly doubtful and do not inspire confidence. Though the motive has
been well established by the testimony of PW-7, but it alone cannot be
sufficient to convict the accused as it is not substantive evidence and
is merely corroborative in nature. Even the medical evidence fails to
support the prosecution version. Thus, the conviction of the accused
cannot be sustained.
In the light of the above discussion, we find no grounds to
interfere with the judgment passed by the High Court. The appeals
are, accordingly, dismissed.
******
49
12. Section 376 of IPC
Section 482 of Cr.P.C.
Sujoy Mitra Vs. State of West Bengal
Jagdish Singh Khehar & R. Banumathi ,JJ.
In the Supreme Court of India.
Date of Judgment -02-12-2015
Issue
Procedure to be adopted in recording statement who
resides outside of the country.
Relevant Extract
The appellant before this Court is an accused, who is facing trial
in ST No. 1(8) of 2014 arising out of Kalighat police station Case No.
164/2013 dated 1.6.2013, inter alia, under Section 376 of the Indian
Penal Code. The complainant in the above case is a citizen of Ireland,
resident in Dublin. Four witnesses were examined by the trial Court
before examining the prosecutrix-PW5. The trial Court accepted to
record the testimony of the prosecutrix, through video conference.
The appellant before this Court raised a challenge to the
procedure adopted by the trial Court, while recording the statement of
PW5 on various grounds, by filing a petition under Section 482 of the
Code of Criminal Procedure. The learned Single Judge of the High
Court of Calcutta, disposed of Criminal Revision No. 1285 of 2015, by
passing the impugned order dated 16.06.2015. Alleging, that the
postulated procedure was not fair to the appellant, the appellant has
approached this Court.
50
We have heard learned counsel for the rival parties at some
length, and are satisfied, that the following procedure should be
adopted, in addition to the steps and safeguards provided in the
impugned order, while recording the statement of PW5:
I) The State of West Bengal shall make provision for recording
the testimony of PW5 in the trial Court by seeking the services of the
National
Informatic
Centre
(NIC)
for
installing
the
appropriate
equipment for video conferencing, by using “VC Solution” software, to
facilitate video conferencing in the case. This provision shall be made
by the State of West Bengal in a room to be identified by the
concerned Sessions Judge, within four weeks from today. The NIC will
ensure, that the equipment installed in the premises of the trial Court,
is compatible with the video conferencing facilities at the Indian
Embassy in Ireland at Dublin.
II) Before recording the statement of the prosecutrix-PW5, the
Embassy shall nominate a responsible officer, in whose presence the
statement is to be recorded. The said officer shall remain present at all
times from the beginning to the end of each session, of recording of
the said testimony.
III) The officer deputed to have the statement recorded shall also
ensure, that there is no other person besides the concerned witness, in
the room, in which the testimony of PW5 is to be
recorded. In case, the witness is in possession of any material or
documents, the same shall be taken over by the officer concerned in
his personal custody.
IV) The statement of witness will then be recorded. The witness
shall be permitted to rely upon the material and documents in the
51
custody of the officer concerned, or to tender the same in evidence,
only with the express permission of the trial Court.
V) The officer concerned will affirm to the trial Court, before the
commencement of the recording of the statement, the fact, that no
other person is present in the room where evidence is recorded, and
further, that all material and documents in possession of the
prosecutrix-PW5 (if any) were taken by him in his custody before the
statement was recorded. He shall further affirm to the trial Court, at
the culmination of the testimony, that no other person had entered the
room, during the course of recording of the statement of the witness,
till the conclusion thereof. The learned counsel for the accused shall
assist the trial Court, to ensure, that the above procedure is adopted,
by placing reliance on the instant order.
VI) The statement of the witness shall be recorded by the trial
Court, in consonance with the provisions of Section 278 of the Code of
Criminal Procedure. At the culmination of the recording of the
statement, the same shall be read out to the witness in the presence
of the accused (if in attendance,or to his pleader). If the witness
denies the correctness of any part of the evidence, when the same is
read over to her, the trial Court may make the necessary correction,
or alternatively, may record a memorandum thereon, to the objection
made to the recorded statement by the witness, and in addition
thereto, record his own remarks, if necessary.
VII) The transcript of the statement of the witness recorded
through video conferencing(as corrected, if necessary), in consonance
with the provisions of Section 278 of the Code of Criminal Procedure,
shall be scanned and dispatched through email to the embassy. At the
52
embassy, the witness will authenticate the same in consonance with
law. The aforesaid authenticated statement shall be endorsed by the
officer deputed by the embassy. It shall be scanned and returned to
the trial Court through email. The statement signed by the witness at
the embassy, shall be retained in its custody in a sealed cover.
VIII) The statement received by the trial Court through email
shall be re-endorsed by the trial Judge. The instant statement
endorsed by the trial Judge, shall constitute the testimony of the
prosecutrix-PW5, for all intents and purposes.
We are satisfied, that the aforesaid parameters will meet the
ends of justice, and that no further inputs are required. Needless to
mention, that the procedure for recording the statement of PW5, as
noticed above, was finalised with the invaluable assistance of the
learned counsel for the rival parties.
In recording our conclusions in regulating the above procedure,
the learned senior counsel for the appellant emphasised, that
recording of the video-graphic testimony of the witness should be
furnished to the appellant, and it is only thereupon, that the direction
contained in the judgment rendered by this Court in State of
Maharashtra vs. Dr. Praful B. Desai (2003) 4 SCC 601, can be deemed
to have been fully complied with. The instant contention of the learned
senior counsel for the appellant is based on a variety of reasons
including the fact, that the statement may be recorded in a language
which is not known, and/or is not properly understandable to the
accused. And even if the statement of the witness is recorded in
English, because of different accents of English (based on the countries
of their origin), it may not be possible to fully understand the
testimony of the concerned witness.
53
Having given our thoughtful consideration to the instant
contention advanced at the hands of the learned senior counsel for the
appellant, we find no reason whatsoever to agree with the same. In
case of there being any difficulty in recording the testimony of the
concerned witness, it is always open to the trial Court to seek
appropriate assistance (based on, or independently of such plea raised
by a party to the proceeding), as may be required by the trial Court,
for a truthful recording of the testimony of the concerned witness. We
are of the view, that furnishing recorded video-graphic testimony to an
accused may eventually turn out to be a cumbersome process, if the
same has to be replicated in all cases. Specially because this
procedure is increasingly being adopted, by allowing the accused to
participate in their trials, from jail premises also (at certain stages of
the trial). And further more, it is likely to lead more record, which will
also have to be maintained for its safe custody. What has been allowed
to the accused herein, is what an ordinary accused would be entitled
to, had the statement been recorded by the trial Court itself.
The instant appeal is accordingly disposed of. The trial Court shall
fix the date of hearing, as and when the videoconferencing facilities
have been provided for in the premises of the trial Court, and after the
same have been synchronized with the facilities available at the Indian
Embassy in Ireland at Dublin.
The trial Court shall forward the instant order through the
Sessions Judge, 24 Parganas, Alipore to the Ambassador of the Indian
Embassy in Ireland at Dublin for compliance.
The instant parameters have to be adopted to record the
testimony of the prosecutrix-PW5, in addition to the procedure and
safeguards provided for in the impugned order. Accordingly, it will be
imperative to record her testimony afresh.
******
54
Constitution of India
13. Articles 325, 326, 80,171 of Constitution of India
Rajbala & ors. Vs. state of Haryana & ors.
J. Chelameswar & Abhay Manohar Sapre ,JJ.
In the Supreme Court of India
Date of Judgment- 10.12.2015
Issue
Electoral rights –Right to vote and right to contest
elections –Are constitutionals rights of citizens and not merely
statutory rights.
Relevant Extract
The challenge is to the constitutionality of the Haryana
Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015), hereinafter
referred to as the “IMPUGNED ACT”.
Even prior to advent of the Constitution of India under the
Government of India Act, 1935 certain local bodies with elected
representatives were functioning. Such local bodies did not, however,
have constitutional status. They owed their existence, constitution and
functioning to statutes and had been subject to the overall control of
provincial governments.
Article 40 of the Constitution mandates“40. Organisation of village panchayats - The State shall take
steps to organize village panchayats and endow them with such
powers and authority as may be necessary to enable them to function
as units of self government.” To effectuate such obligation of the
State, Constitution authorized (even prior to the 73rd Amendment)
State Legislatures under Article 246(3) read with Entry 5 of List II to
make laws with respect to;
“5. Local government, that is to say, the constitution and powers
of municipal corporations, improvement trusts, districts boards, mining
settlement authorities and other local authorities for the purpose of
local self-government or village administration.”
55
The Constitution recognises the distinction between the ‘Right to
Vote’ at various elections contemplated under the Constitution and the
‘Right to Contest’ at such elections.
The right to vote of every citizen at an election either to the Lok
Sabha or to the Legislative Assembly is recognised under Articles 325
and 326 subject to limitations (qualifications and disqualifications)
prescribed by or under the Constitution. On the other hand the right to
vote at an election either to the Rajya Sabha or to the Legislative
Council of a State is confined only to Members of the Electoral Colleges
specified under Article 80(4) & (5) and Article 171 (3)(a), (b), (c),
(d)25 respectively.
The Constitution prescribes certain basic minimum qualifications
and disqualifications to contest an election to any of the above
mentioned offices or bodies. Insofar as election to the Office of the
President and Vice President are concerned, they are contained under
Articles 58 and 66 respectively. Insofar as Parliament and the State
Legislatures are concerned, such qualifications are stipulated under
Articles 84 and 173, and disqualifications under Articles 102 and 191
respectively. The Constitution also authorizes Parliament to make laws
prescribing both further qualifications and disqualifications. An
examination of the scheme of these various Articles indicates that
every person who is entitled to be a voter by virtue of the declaration
contained under Article 326 is not automatically entitled to contest in
any of the elections referred to above. Certain further restrictions are
imposed on a voter’s right to contest elections to each of the above
mentioned bodies. These various provisions, by implication create a
constitutional right to contest elections to these various constitutional
offices and bodies. Such a conclusion is irresistible since there would
be no requirement to prescribe constitutional limitations on a non
existent constitutional right.
56
In examining the question regarding the nature of "Right to
Contest" while examining the constitutional validity of certain
provisions of The Act. The learned Judge R.C. Lahoti (as his Lordship
then was) speaking for the Bench held that right to contest an election
is neither a Fundamental Right nor a common right. It is a right
conferred by statute. His Lordship went on to hold that "at the most, in
view of Part IX having been added in the 61Constitution, a right to
contest the election for an office in Panchayat may be said to be a
constitutional right. We are bound by this view taken by a three Judge
Bench while deciding this question in this writ petition.
In the light of aforementioned two authoritative pronouncements,
we are of the considered opinion that both the rights namely "Right to
Vote" and "Right to Contest" are constitutional rights of the citizen.
Indeed, my learned brother rightly took note of the few
decisions, which had while deciding the main questions involved in
those cases also incidentally made some observations on these two
issues, which we feel were not in conformity with the law, laid down in
the aforementioned two decisions.
Coming now to the question of constitutional validity of Section
175 (1)(v) of the Act which provides that candidate must possess
certain minimum educational qualification if he/she wants to contest
an election. In my opinion, introduction of such provision prescribing
certain minimum educational qualification criteria as one of the
qualifications for a candidate to contest the election has a reasonable
nexus with the object sought to be achieved.
In fact, keeping in view the powers, authority and the
responsibilities of Panchayats as specified in Article 243-G so also the
powers given to Panchayats to impose taxes and utilization of funds of
the Panchayats as specified in Article 243-H, it is necessary that the
elected representative must have some educational background to
enable him/her to effectively carry out the functions assigned to
57
Panchyats in Part IX. It is the legislative wisdom to decide as to what
should be the minimum qualifications, which should be provided in the
Act.
No one can dispute that education is must for both men and
women as both together make a healthy and educated society. It is an
essential tool for a bright future and plays an important role in the
development and progress of the country.
In my view, therefore, Section 175 (v) of the Act is intra vires
the Constitution and is thus constitutionally valid. Now coming to the
question regarding constitutionality of Section 175(w) of the Act,
which provides that if a person has no functional toilet at his place of
residence, he/she is disqualified to contest the election. In my view,
this provision too has reasonable nexus and does not offend any
provision of 63the Constitution.
Indeed, there are no grounds much less sustainable grounds
available to the petitioners to question the validity of this provision.
This provision in my view is enacted essentially in the larger public
interest and is indeed the need of the hour to ensure its application all
over the country and not confining it to a particular State. Moreover,
the State having provided adequate financial assistance to those who
do not have toilet facility for construction of toilet, there arise no
ground to challenge this provision as being unreasonable in any
manner. Since this issue has already been elaborately dealt with by
my learned brother, therefore, I do not wish to add anything more to
it.
In the light of the foregoing discussion agreeing with my learned
brother, I also hold that Section 175 (v) is intra vires the Constitution
and is thus constitutionally valid.
In my view, therefore, the writ petition deserves to be dismissed
and is accordingly dismissed. As a consequence, interim order stands
vacated.
******
58
Narcotic Drugs and Psychotropic Substances Act
14. Section 20(b) (ii) (C) of the NDPS ACT
Section 313(1) (b) of Cr.P.C.
Sujit Bepari Vs. State of Orissa
Raghubir Dash , J.
In the High Court of Orissa: Cuttack
Date of Judgment: 10.12.2015
Issue
Justification of conviction under Section 20(b)(ii)(C) of
the N.D.P.S. Act & applicability of section 50 of NDPS Act and
Section 313(1) (b) of Cr.P.C.
Relevant Extract
The Appellant is one of the two accused persons against whom
the prosecution was lodged. According to the
prosecution, on
11.11.2007 at about 5.00 A.M. the S.I. of Excise, Malkangiri with his
staff while on patrolling duty received reliable information about illegal
transportation of Ganja in one Tata Specio Jeep bearing registration
No.OR17D-7300. Sometime thereafter, when the patrolling party
noticed that the aforestated vehicle was proceeding towards Jeypore in
a high speed they tried to stop the vehicle. The Excise Officials chased
the vehicle and ultimately when they could make the vehicle stop at
Govindapalli Forest Check Gate the driver of the vehicle, namely,
Narayan Sahu fled away. But, the present Appellant, who was an
occupant of that vehicle, made an abortive attempt to run away. He
was apprehended on the spot. On being asked he disclosed his
identity. Securing the presence of an Executive Magistrate and
observing formalities, the Appellant’s person was searched but nothing
could be found. However, on a search of the jeep in question recovery
of 5 jute bags containing suspected Ganja was made. The substance
59
smelled like Ganja. The material was weighed and it was found that in
total 144 Kgs. of suspected Ganja was there in all the jute bags.
Sample of the seized article was collected from the contents of each of
the jute bag and after observing all formalities the collected samples
were packed and sealed separately and the articles recovered during
the search were seized. The Appellant was arrested and the seized
articles
were
Subsequently,
produced
the
sample
before
so
the
collected
learned
was
Special
sent
for
Judge.
chemical
examination through the S.D.J.M., Malkangiri. C.E. Report confirmed
that the sample sent for chemical examination was nothing but Ganja
as defined in N.D.P.S. Act. On completion of enquiry prosecution
report was submitted against the Appellant as well as the driver of the
jeep showing the latter as an absconder.
The argument on non-compliance of Section 50 of the Act is not
well founded. It is well settled that Section 50 would come into play
only in the case of a search of a person as distinguish from search of
any premises etc. In this case the contraband article was recovered
from the vehicle of which the Appellant was found to be an occupant at
the time it was intercepted. Though search of the Appellant’s person is
said to have been conducted in presence of an Executive Magistrate
nothing has been recovered. Therefore, any departure from proper
compliance of Section 50 of the Act does not strike at the root of the
case.
Non-compliance of any other specific mandatory provisions of law
laid down in the Act has not been pointed out.
60
Though it is contended that recording of the accused statement
at the time of examination of the accused under Section 313(1)(b)
Cr.P.C. is defective, nothing is pointed out as to how and at what point
any defect has occurred so as to enable the Court to find out whether
such violation causes prejudice to the accused- Appellant.
The contention that there are material contradictions in the
testimony of the prosecution witnesses going to the very root of the
case is not well founded. No such material contradiction has been
pointed out and on perusal of the depositions of P.Ws.1 to 4 no
material contradiction could be noticed. Section 35 of the Act lays
down that in any prosecution for an offence under the Act which
requires a culpable mental state of the accused, the Court shall
presume the existence of such mental state but it shall be a defence
for the accused to prove the fact that he had no such mental state.
However, Hon’ble Apex Court have observed in Abdul Rashid
Ibrahim Mansuri v. State of Gujurat; AIR 2000 SC 821 that if
circumstances appearing in the prosecution case or in the prosecution
evidence are such as to give reasonable assurance to the Court that
Appellant could not have had the knowledge or the required intention,
the burden cast on him under Section 35 of the Act would stand
discharged even if he has not adduced any evidence to prove the fact
that he had no such culpable mental state. During the trial the
Appellant has examined himself and another witness to prove that
because of previous enmity the S.I. of Excise has foisted the case on
him. Learned Court below has rightly discarded the defence evidence.
61
Relevant facts and circumstances available in the case at hand
are already reflected above. Having regard to the same this Court
finds that learned Court below has rightly held the Appellant to be in
conscious possession of the seized “Ganja”. Once it is presumed that
the Appellant was in conscious possession of the contraband article
which has not been satisfactorily accounted for, a presumption under
Section 54 of the Act can be raised that the Appellant committed the
offence punishable under Section 20(b)(ii)(C) of the Act. Since brass
seal remained in custody of the Executive Magistrate, tampering of the
sealed packets cannot be presumed unless and until it is shown that
the seal impressions appearing on any of the sealed packets did not
correspond to the specimen impression of the brass seal or, there is
evidence of physical tampering with the seal appearing on any of the
packets. The chemical examiner’s report (Ext.11) reflects that five
samples of “Ganja” were received on 17.12.2007 and seal impressions
on the sealed packets were identical with the specimen impression of
the seal given on the forwarding report accompanying the samples.
This being the nature of evidence available on record, no reasonable
doubt can be raised over the proper custody of the seized ‘Ganja’ as
well as the sample packets. It appears, since the learned court below
has awarded minimum punishment as prescribed under the Act, no
objection has been raised on the propriety of the sentence.
Having dealt with all the points raised by the learned counsel for
the appellant and finding that the impugned judgment is not liable to
be interfered with, this Court dismisses the Criminal Appeal confirming
the impugned order of conviction and sentence.
*****
62
Hindu Marriage Act , 1955
15. Section 13 (1)(i-a) & (i-b) of Hindu Marriage Act
Section 127 of Cr. p. C.
Ranjana Rani Panda Vs. Sanjay Kumar Panda.
Vinod Prasad & S.K. Sahoo, JJ.
Date of Judgment– 22.12.2015
Issue
Pending a case of maintenance and allowing Divorce - the
legality thereof.
Relevant Extract
The respondent-husband instituted a Divorce Proceeding against
the appellant-wife stating therein that the marriage between the
parties was solemnized on 16.01.1996 in Sector-9, P.S.- Sector-7,
Rourkela in accordance with Hindu rites and customs. After the
marriage, the parties lead their conjugal life for about three months in
the house of the respondent-husband. Thereafter, the appellant-wife
started creating disturbance in the marital life, neglected her domestic
duties for which most of the time the respondent-husband used to go
to attend his duties in Rourkela Steel Plant without food. The
appellant-wife was using insulting language towards her mother- inlaw and other in-laws family members without any reasonable cause.
It is the further case of the respondent-husband that the appellantwife started pressuring him to live separately but he expressed his
unwillingness since he was the eldest son of the family. The appellantwife threatened to commit suicide and in spite of the intervention of
the family members and well wishers, she did not mend her behaviour
and treated the respondent-husband with cruelty.
It is the further case of the respondent-husband that on
17.07.1996 the appellant-wife complained of pain in her abdomen for
which she was taken to I.G.H., Rourkela for medical treatment but
after her medical check up, she insisted to go to her elder sister’s
house who was also staying at Rourkela and when the respondent63
husband took her there, she became violent and refused to return
back to her in-laws house. The respondent-husband wrote several
letters to the appellant-wife to return back but when no fruitful result
came, he instituted a petition under section 9 of the Hindu Marriage
Act read with section 7 of the Family Courts Act bearing Civil
Proceeding No. 129 of 1996 before the Judge, Family Court, Rourkela
which was allowed vide judgment and order dated 23.07.1997 and the
appellant-wife was directed to restitute the conjugal life with the
respondent husband within two months from the date of judgment. In
the meantime, the appellant-wife was blessed with a daughter. The
appellant-wife did not turn up back to her matrimonial house even
though the respondent-husband tried his level best. It is the case of
respondent-husband that the appellant-wife made his life miserable by
subjecting him to cruelty.
The divorce petition was filed on 30.07.1998. Notice was issued
to the appellant-wife who entered her appearance. The appellant-wife
filed her written statement denying the allegations levelled against her
rather it is her case that after seven days of marriage, her husband
started ill-treatment and subjected her to cruelty and demanded
Rs.50,000/- towards dowry. As the appellant-wife expressed her
inability, she was assaulted regularly by her husband after consuming
liquor. When she was pregnant, the husband assaulted her by means
of kick blows on the lower part of her abdomen for which she was
shifted to hospital. On 17.07.1996 her condition became serious for
which she was taken to hospital and thereafter she came to her
father’s place. It is the further case of the appellant-wife that her
husband used to keep illicit relationship with number of ladies and
severely tortured her and did not provide her medical treatment and
even after the birth of the child, he did not come to see the child.
Though she instituted maintenance case but she had not received any
maintenance. Having dispassionately considered the materials before
us and the fact that the respondent-husband and the appellant-wife
had been living separately for 16 years as of now after the decree of
divorce and they are not interested to live with each other, it would be
64
in the interest of both the parties to sever the matrimonial ties since
the marriage has broken down irretrievably. Court grants a decree of
divorce only in those situations in which the Court is convinced beyond
doubt that there is absolutely no chance of the marriage surviving and
it is broken down beyond repair. Since both the parties are not willing
to stay with each other and the marriage between the parties is dead
for all purposes and one of the party i.e. the respondent-husband has
already married for the second time and is blessed with two sons
through the second marriage, even if we set aside the impugned
decree of divorce, there are hardly any chances for both of them
staying together to lead a happy conjugal life and therefore, it is a fit
case where the decree of divorce passed by the learned Family Judge
should be upheld. Accordingly we uphold the decree of divorce.
So far as permanent alimony is concerned, no order has been
passed by the learned Family Judge in that respect while passing the
decree of divorce. Even though the decree of divorce was passed on
the ground that there has been no restitution of conjugal rights as
between the appellant-wife and the respondent-husband for a period
of one year or upwards after the passing of a decree for restitution of
conjugal rights but no reason whatsoever has been assigned by the
Family Judge for not passing any order of permanent alimony in terms
of section 25 of the Hindu Marriage Act. We are not inclined to accept
the contention raised by the learned counsel for the respondenthusband that if a wife does not join the company of her husband in
spite of the direction of restitution of conjugal rights, at the time of
passing decree of divorce in favour of the husband, no permanent
alimony can be granted to the wife.
Considering the submissions made by the respective parties, we
are of the view that no sufficient cause has been shown for condoning
the delay in filing the revision petition. The limitation petition is also
lacking in material particulars and wrong averments regarding actual
number of days of delay has been taken. Though it is the settled
principle of law that “sufficient cause” should receive liberal
65
construction so as to advance substantial justice when no negligence
or inaction or want of bona fide is imputable to a party and acceptance
of explanation furnished should be rule and refusal an exception and
explanation furnished should not be rejected by taking a pedantic and
hyper technical view in the matter but in the present case we are of
the view that after receiving the certified copy of the impugned
judgment, there was sufficient time in the hands of the respondenthusband to prefer revision petition within time. In spite of that the
inaction of the respondent-husband in preferring the revision petition
in time speaks of gross negligence and want of bona fide. In view of
what we have discussed, we are not inclined to condone the period of
delay in preferring the revision petition. Accordingly RPFAM petition
stands dismissed as being barred by limitation.
Before parting, we would like to humbly say that peaceful
marriage is blissful. Marriages are not made in heaven but on this
earth. A couple can however make their marital life heavenly without
any kind of thunder and lightning only by mutual love, mutual trust
and mutual understanding. The promises made on the marriage altar
before the sacred fire holding hand in hand should be fulfilled with
commitment and endless forgiveness till the end of journey.
In the result, Civil Appeal is allowed in part and to the extent
mentioned hereinbefore. RPFAM petition stands dismissed. Till the
deposit of entire permanent alimony amount as fixed by us, the
respondent-husband shall go on paying the monthly maintenance
amount as was directed by the Family Judge earlier.
******
66