JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P.

,
LUCKNOW

Quarterly Digest

CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS

(Covering important judgments of Supreme Court and Allahabad High Court)

July - September, 2017

EDITOR-IN-CHIEF
Anil Kumar Ojha
Volume: XVIII Issue No.: 3
 Director

EDITOR-IN-CHARGE

Dr. Babbu Sarang,

Addl. Director (Research)
(REDITORS
Dr. Babbu Sarang, Addl. Director (Research)
Sudhir Kumar – V, Addl. Director (Trg.)
Pradeep Kumar Singh, Addl. Director (Admin.)
Pankaj Jaiswal, Dy. Director
Mohinder Kumar, Dy. Director
Saurabh Saxena, Dy. Director

FINANCIAL ADVISOR
Ram Prakash Pal, Additional Director (Finance)
ASSOCIATE
B.K. Mishra, Research Officer
ASSISTANCE
Waqar Hasan
Girish Kumar Singh
Anoop Kumar
 SUBJECT INDEX

(Supreme Court)
Sl. No. Name of Act
1. Administration of Justice
2. Administrative Law
3. Advocate Act
4. Arbitration Act
5. Arbitration and Conciliation Act
6. Arms Act
7. Bail
8. Civil Procedure Code
9. Constitution of India
10. Consumer Protection Act
11. Contempt of Courts Act
12. Criminal Justice System
13. Criminal Procedure Code
14. Criminal Trial
15. DNA Test
16. Estoppel
17. Evidence Act
18. Forest Act
19. General Clauses Act
20. Hindu Law
21. Hindu Marriage Act
22. Hindu Succession Act
23. Indian Contract Act
24. Indian Penal Code
25. Interest Act
26. Interpretation of Statute
27. Juvenile Justice (Care & Protection of Children) Act
28. Land Acquisition Act
29. Limitation Act
30. Mohammedan Law
31. Motor Vehicles Act
32. Muslim Personal Law (Shariat) Application Act
33. Narcotic Drugs and Psychotropic Substance Act
34. Negotiable Instrument Act
35. Practice and Procedure
36. Prevention of Corruption Act
37. Prevention of Money Laundering Act
38. Provincial Small Cause Courts Act
39. Rent Control Act
40. Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act
41. Right to Information Act
42. Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act
43. Service Law
44. Specific Relief Act
45. Transfer of Property Act
46. U.P. Consolidation of Holdings Act
47. Wakf Act
48. Words and Phrases
***
 SUBJECT INDEX
(High Court)
Sl. No. Name of Act
1. Arbitration and Conciliation Act
2. Civil Procedure Code
3. Constitution of India
4. Criminal Procedure Code
5. Criminal Trial
6. Court Fees Act
7. Evidence Act
8. Indian Stamp Act
9. Interpretation of Statutes
10. Land Acquisition Act
11. Motor Vehicles Act
12. Motor Vehicle Rules
13. Muslim Law
14. Provincial Small Cause Courts Act
15. Registration Act
16. SARFAESI Act
17. Service Law
18. U.P. Recruitment of Dependents of Government Servants Dying-
in-Harness Rules
19. Specific Relief Act
20. Statutory Provisions
21. Trust Act
22. U.P. Panchayat Raj (Settlement of Election Disputes) Rules
23. U.P. Revenue Code
 24. U.P. Urban Building (Regulation of Letting, Rent and Eviction)
Act
25. U.P. Zamindari Abolition and Land Reforms Act.
26. Wakf Act
27. Words and Phrases
28. Legal Quiz
***

NOTE:This journal is meant only for reference and guidance. For

authentic detailed information, readers are advised to
consult referred Journal(s).
 LIST OF THE CASES COVERED IN THIS ISSUE
(SUPREME COURT)
S.No. Particular
1. Adiveppa & Ors. Bhimappa & Anr. 2017 (11) SCALE 156
2. Ajayinder Sangwan and Ors. v. Bar Council of Delhi & Ors.,
2017 (9) SCALE 561
3. Ajit Singh V. State of Chhattisgarh 2017 (4) Supreme 548
4. Alamelu Ammal V. S. Rani, AIR 2017 SC 2612
5. Amardeep Singh V. Harveen Kaur, 2017 (11) SCALE 258
6. Ambadas Khanduji Shinde and others V. Ashok Sadashiv
Mamurkar and others, 2017 (2) ARC 466 Supreme Court
7. Amrutbhai Shambhubhai Patel V. Sumanbhai Kantibhai Patel
2017 (5) Supreme 11
8. Anil Kumar V. State of Punjab, (2017) 2 SCC (Cri) 502, (2017)
5 SCC 53
9. Assam State Electricity Board V. Buildworth Pvt. Ltd. 2017 (5)
Supreme 405
10. Atma Singh v. Gurmej Kaur (D) & Ors. 2017 (11) SCALE 567
11. Avishek Raj V. Sanjay Gupta 2017 (5) Supreme 179
12. Bapusaheb Chimasaheb Naik Nimbalkar (Dead) through LRs V.
Mahesh Vijaysinha Rajebhosale, 2017 (4) Supreme 593
13. Bhagwati @ Reena V. Anil Chaubey 2017 (5) Supreme 108
14. Bijoy Sinha Roy (D) by LR. V. Biswanath Das & Ors. 2017
(11) SCALE 391
15. Bimolangshu Roy (Dead through LRs V. State of Assam
2017(6) Supreme 221
16. Brijendra Singh V. State of Rajasthan 2017 (4) Supreme 558
17. Canara Bank Rep. by Its Deputy Gen. Manager V. C.S. Shyam
& Anr. 2017 (11) SCALE 1
18. Central Bureau of Investigation V. Sadhu Ram Singla and
others, (2017) 2 SCC (Cri) 535, (2017) 5 SCC 350
19. Chairman and Managing Director, FCI V. Jagdish Balaram
 Bahira, AIR 2017 SC 3271
20. Damini and Another v. Managing Director, Jodhpur Vidyut
Vitran Nigam Limited and another, 2017 (11) SCALE 450
21. Delhi Development Authority V. Islamuddin 2017 (5) Supreme
89
22. Gandhe Vijay Kumar V. Mulji @ Mulchand, 2017 (8) SCALE
388
23. Girish Kumar Suneja V. C.B.I., AIR 2017 SC 3620
24. Gurnam Singh (D) Thr. Lrs. V. Gurbachan Kaur (D) by Lrs.
2017(4) Supreme 549
25. Hameed Kunju V. Nazim 2017 (5) Supreme 565
26. Hareendran V. Sukumaran, AIR 2017 SC 2697
27. Harpreet Singh V. State of Himachal Pradesh 2017 (6) Supreme
289
28. Inhuman Conditions in 1382 Prisons 2017 (11) SCALE 493
29. Jaswant Singh & Ors. V. Parkash Kaur & Anr. 2017 (9) SCALE
123
30. Justice K.S. Puttaswamy (Retd.) and Anr. V. Union of India and
Ors., 2017 (8) SCALE 38
31. K. Sitaram and another V. CFL Capital Financial Service
Limited and Another, 2017) 2 SCC (Cri) 658 ; (2017) 5 SCC
725
32. K. Subbarayudu and others V. The Special Deputy Collector
(Land Acquisition) 2017 (8) SCALE 61 : 2017 (5) Supreme 572
33. K.S. Varghese V. St. Peter‘s & Paul‘s Syrian Orth. 2017 (5)
Supreme 207
34. Kanchan Udyog Ltd. V. United Spirits Ltd. 2017 (5) Supreme
165
35. Laldhari Mistri (Dead) Thr. Lrs. And another V. Vijay Kumar,
2017(3) ARC 13
36. Lt. Col. Prasad Shrikant Purohit V. State of Maharashtra, 2017
(9) SCALE 442
37. M/s Purohit and Company V. Khatoonbee and another, 2017
(35) LCD (SC) 2206
38. Madanayya V. State of Maharashtra 2017 (4) Supreme 671
39. Madanuru Sri Rama Chandra Murthy vs. Syed Jalal, AIR 2017
SC 2653
40. Maharaji Educational Trust V. Housing & Urban development
Corporation Ltd. 2017 (5) Supreme 75
41. Manager, Corporate Educational Agency V. James Mathew
2017 (6) Supreme 306
42. Manti Devi V. kishun Sah @ Kishun Deo Sao 2017 (5)
Supreme 104
43. Manuara Khatun and others V. Rajesh Kumar Singh and others,
(2017) 2 SCC (Cri) 492, (2017) 4 SCC 796 ; National Insurance
Company Vs. Roshan Lal and another, (2017) 2 SCC (Cri) 499,
(2017) 4 SCC 803.
44. Mukesh and another V. State (NCT of Delhi) and others, (2017)
2 SCC (Cri) 673 ; (2017) 7 SCC 1
45. Muttaicose @ Subramani V. State of Tamil Nadu Rep. by
Inspector of Police 2017 (5) Supreme 402
46. N. Prameswaran Unni V. G. Kannan and another, (2017) 2
SCC (Cri) 668 ; (2017) 5 SCC 737
47. Naresh Kumar alias Nitu V. State of Himachal Pradesh 2017 (6)
Supreme 263
48. P. D. Geol V. High Court of Himachal Pradesh through its
Registrar General 2017 (5) Supreme 795
49. Parminder Singh V. Gurpreet Singh, 2017 (8) SCALE 382
50. Punjab State Civil Supplies Corporation Ltd. & Anr. V. M/s
Atwal Rice & General Mills Rep. by Its Partners, 2017 (7)
SCALE 691
51. Raja Venkateswarlu and another V. Mada Venkata Subbaiah
and another, 2017 (3) ARC 7
52. Rajiv Kumar V. State of U.P., 2017 (6) Supreme 1
53. Rakesh Kumar Paul V. State of Assam, AIR 2017 SC 3948
54. Ramesh Chand V. M/s Ranmayt Developers Pvt. Ltd. 2017 (4)
Supreme 588
55. Ratan Lal v. Prahlad Jat & Ors., 2017 (11) SCALE 551
56. Re : Exploitation of Children in Orphanage in the State of Tamil
Naddu V. U.O.I., 2017 Cr.L.J. 3217
57. Roger Shashopua V. Mukesh Sharma, AIR 2017 SC 3166
58. S. Saranjeet Singh V. S. Jaskirat Singh, AIR 2017 SC 3440
59. S. Subbulaxmi V. Kumarasamy 2017 (5) Supreme 437
60. S.N.D.P. Sakhayogam v. Kerala Atmavidya Sangham & Ors.
2017 (11) SCALE 84
61. Sandeep Khanuja V. Atul Dande 2017 (5) Supreme 29
62. Sanjay Khanderao Wadane V. State of Maharashtra 2017 (5)
Supreme 282
63. Sanjay V. Anil S/o. Shankarsa Pawar, AIR 2017 SC 2565
64. Satish Chand (D) by LRs. V. Kailash Chand 2017 (5) Supreme
206
65. Satnam Singh V. Malook Singh, AIR 2017 SC 3749
66. SBT Chaman Lal V. Union of India 2017(6) Supreme 166
67. Sejal Glass Ltd. V. Navilan Merchants Pvt. Ltd. 2017 (11)
SCALE 238
68. Shayara Bano V. Union of India 2017 (5) Supreme 577
69. Smt. P. Chandrakala V. K. Narender 2017 (6) Supreme 164
70. Sonu @ Amar V. State of Haryana 2017(5) Supreme 816
71. State of Haryana and another v. Ved Kaur, 2017 (35) LCD 1981
72. State of Jharkhand through S.P., C.B.I. V. Lalu Prasad @ Lalu
Prasad Yadav 2017 (4) Supreme 321
73. State Of Madhya Pradesh & Ors V. Kallo Bai 2017 CrLJ 3233
74. State of Orissa V. Bibhisan Kankar 2017 (5) Supreme 814
75. State of U.P. V. Ananad Kumar Yadav 2017 (6) Supreme 177
76. State of U.P. V. Ram Kumar 2017(5) Supreme 838
77. State of Uttarakhand & Ors. v. Kumaon Stone Crusher, 2017
(11) SCALE 651
78. Suraj Pal (D) Thr. LR V. Ram Manorath, AIR 2017 SC 3825
79. Suresh Chandra Jana V. The State of West Bengal 2017 (6)
Supreme 35
80. TRF Ltd. V. Energo Engineering Projects Ltd. 2017 (5)
Supreme 358
81. U. Manjunath Rao V. U. Chandrashekar & Anr. 2017 (8)
SCALE 488 : AIR 2017 SC 3591
82. Union of India V. M/s. Margadarshi Chit Funds (P) Ltd. 2017
(5) Supreme 417
83. Union of India V. Ms. Kumho Petrochemicals Company Ltd.
2017 (4) Supreme 738
84. Union of India V. Varinder Singh @ Raja 2017(6) Supreme 162
85. Vaishali Abhimanyu Joshi V. Nanasaheb Gopal Joshi, AIR
2017 SC 2926
86. Vasant Rao Guhe V. State of Madhya Pradesh 2017(6) Supreme
153
87. Vasanta Sampat Dupare V. State of Maharashtra, 2017 Cr.L.J.
3204
88. Virupakshappa Gouda and another vs. State of Karnataka and
another, (2017) 2 SCC (Cri) 542 ; (2017) 5 SCC 406
89. Vithal Tukaram Kadam V. Vamanrao Sawalaram Bhosale 2017
(6) Supreme 158
 LIST OF THE CASES COVERED IN THIS ISSUE
(HIGH COURT)
Sl. No. Particulars
1. Aaqil Jamil V. State of U.P.,2017 (4) ALJ 229
2. Abhijit Prabhakar Konduskar V. State of Gujarat, 2017 Cr.L.J. 3026
(Guj HC)(FB)
3. Anwar Alam V. Smt. Raisa Bano, 2017 (2) ARC 585
4. Ashish v. D.H. Ltd. 2017 (3) AWC 2238
5. Ashok Kumar V. Authorized Officer, Punjab National Bank, AIR
2017 All. 178
6. Ashwani Kumar V. State of U.P. and others, 2017 (3) AWC 2434
7. Baljeet and others V. State of U.P. and others, 2017 (3) AWC 2364
8. Banshidhar V. Sheela Devi, 2017 (4) ALJ 177
9. Bhairon Prasad & Ors V. State, 2017 (4) ALJ 88
10. Bharat Singh V. Addl. Commissioner and others., 2017 (5) ALJ 338
11. Bhrighu And 2 Others. V. Smt. Dhanesgaru And Another., 2017 (2)
ARC 824
12. Central Council Radhasoami Satsang And 21 Others V. Dr. D.K.
Hazra, 2017(2) ARC 678
13. Chandrama Singh (Deceased) V. Phagu Ram Verma,2017 (4) ALJ
249
14. Deena Nath Pandey and another V. State of U.P. and others, 2017 (3)
AWC 3120
15. Dr. Kamal Jaiswal V. Union of India thru. Secy. Ministry of HRD,
2017 (4) ALJ 229
16. Gurga Prasad Pachouri V. State of U.P., 2017 (4) ALJ 258
17. Harun Ali and Anr. V. Shri Navjeewan, 2017(2) ARC 668
18. Jagdish Narayan Tandon And 3 Others V. Onkar Nath Tandon And
10 Others, 2017 (4) ALJ 72
19. Jagdish Narayan Tandon And 3 Others V. Onkar Nath Tandon And
 10 Others, 2017 (4) ALJ 72 :2017 (3) AWC 3088
20. Jahar Singh V. State of U.P. and others, 2017 (3) AWC 3177
21. Jitendra Kumar V. Amit Kumar, 2017 (3) AWC 2234
22. Kaluwa V. State of U.P., 2017 (100) ACC 809
23. Krishna Kumar Gupta V. Manoj Kumar Sahu, 2017 (3) AWC 2930:
2017 (4) ALJ 127
24. Lakshmi Shankar Mishra V. Smt. Vineeta Richhriya, 2017 (3) ACC
2933
25. Lekh Raj (Dead) Through L.Rs. & Ors. V. Ranjit Singh & Ors.,
2017(3) ARC 3
26. Mahesh & Another V. Malkhan Singh & Another, 2017 (2) ARC 868
27. Muthoot Finance Ltd. & Another V. Chandra Kant Gupta & 3 Others,
2017(2) ARC 55
28. Pankj Kumar V. State of U.P. and others, 2017 (5) ALJ (NOC) 184
(All.).
29. Radha Sharan Dubey V. Ram Niwas, 2017 (4) ALJ 277: AIR 2017
(NOC) 828 (All)
30. Rajendra Singh V. Chandra Pal, 2017 (3) AWC 2884
31. Ram Chandra Mission V. State of U.P., AIR 2017 (NOC) 688 (All.)
32. Ram Paras And 4 Others. V. Smt. Gyani Devi And 2 Others., 2017 (2)
ARC 816
33. Razee Ullah V. State of U.P. and others, 2017 (35) LCD 2137
34. Salig Ram v. State 2017 (4) ALJ 130
35. Shiv Kesh V. State of U.P. , 2017 (100) ACC 4
36. Shiv Shanker Mukherjee And 12 Others. V. Sandeep Jain And 15
Others., 2017(2) ARC 825
37. Shri Chand V. Harbans And Ors., 2017(2) ARC 710
38. Smt. Meenu Pathak V. Revisional Authority/ Dy. Commissioner
Stamp and others, AIR 2017 All. 132
39. Smt. Prem Lata Tewari and others V. Sushil Kumar and another, 2017
(5) ALJ (LB).
40. Smt. Shabina Bibi V. State of U.P. and others, 2017 (3) AWC 2240)
41. Smt. Shakeela Khatoon V. Jangle Wali Masjid Waqf No. 277 and
another, 2017 (3) AWC 2772
42. Smt. Shalu Sharma V. State of U.P. and another, 2017 (3) AWC 2401
43. Smt. Vimla Devi and another V. Iffco Tokio General Insurance
Company Ltd. And another, 2017 (5) ALJ 346 All (LB)
44. State of U.P. V. Girish Pal, 2017 (100) ACC 353
45. Suresh Kumar Maurya V. Smt. Hiramani Gupta And 3 Ors., 2017 (2)
ARC 574
56. Suresh Kumar Tripathi V. Sankatha Prasad Agrahari And 6 Others,
2017(2) ARC 829
57. United India Insurance Co. Ltd. V. Rahul and others, 2017 (3) AWC
3140
 Part –I (Supreme Court)

Administration of Justice:
Appellant wasting public time – Liable for exemplary cost – Cost of
Rupees one Lakh imposed.
We are of the view that since the appellant has wasted the public
time, while setting aside the aforesaid orders, she should be burdened with
exemplary costs, which we quantify at Rupees one lakh. The appellant is
directed to pay the cost as ordered by us to an orphanage, namely, Delhi
Council for Child Welfare, located at Qudsia Bagh, Yamuna Marg, Civil
Lines, Delhi 110054, within four weeks from today and produce an
acknowledgement for having paid the amount to the orphanage within one
week thereafter. Smt. P. Chandrakala V. K. Narender 2017 (6)
Supreme 164

Theory of adopting a view beneficial to accused, if two views are

possible – Both views should be reasonable and plausible – Instantly,
High Court not taking a reasonable view and acquitting the accused –
Not sustainable.
So far as argument that when two views are possible, the view
favouring the accused should be accepted, is concerned, we have carefully
gone through the detailed judgment of the trial court discussing every bit
of evidence, and the one passed by the High Court, impugned before us.
In our considered opinion from the evidence on record, the view taken by
the High Court so far as it relates to accused Purnendu Kumar Patra is
concerned, the same is not reasonable possible view, for the reason that it
is against the weight of the evidence on record ignoring completely the
circumstances in which the victim reported the matter to police, with the
help of a stranger and that her statement in the F.I.R. is fully corroborated
from the statements of P.W.-1 Dipak Guchhait, P.W.-2 Sudha Krishna
Jana and P.W. – 7 Joyram Jana, apart from the medical evidence on
record. Suresh Chandra Jana V. The State of West Bengal 2017 (6)
Supreme 35

Administrative Law:
Judicial propriety – High Court deciding matter for and against dead
persons whose legal representatives not brought on record –
Judgment and order, held nullity.
It is a fundamental principle of law laid down by this Hon‘ble
Court in Kiran Singh V. Chaman Paswan, AIR 1954 SC 340 that a decree
passed by the Court, if it is a nullity, its validity can be questioned in any
proceeding including in execution proceedings whenever such decree is
sought to be enforced by the decree holder. The reason is that the defect of
this nature affects the very authority of the Court in passing such decree
and goes to the root of the case. This principle, in Hon‘ble Court‘s
considered opinion , squarely applies to this case because it is a settled
principle of law that the decree passed by the Court for or against a dead
person is a ―nullity‖. Gurnam Singh (D) Thr. Lrs. V. Gurbachan Kaur
(D) by Lrs. 2017(4) Supreme 549

Judicial propriety – Matter pending before Supreme Court – Finally

heard and reserved for orders on 31.3.2017 – Recovery Officer
passing orders on 24.4.2017 – Improper – Should have waited for
decision of Supreme Court
When the matter had been heard finally and reserved for orders by
this Court, precisely various submissions were raised in this Court had
also been argued before the Recovery Officer. Propriety required that
Recovery Officer should have waited for the decision of this Court.
Maharaji Educational Trust V. Housing & Urban development
Corporation Ltd. 2017 (5) Supreme 75

Advocate Act
Bar Council of India Certificate and place of Practice (Verification),
Rules, 2015- Fake –Lawyers- Process of verification- Steps taken by
the Bar Council of India to cause an enquiry and to find out fake
lawyers out of its members and/or not even a member of the Bar
Councils and/or member of any Bar Association of the Country
Court has been informed by learned senior counsel for the Bar Council of
India as well as the respective State Bar Councils that the process of
verification is not completed yet. In view of that, to do complete justice to
the parties, it would be proper for us to provide a last opportunity for the
same as mentioned below:-
(1) 15 (fifteen) days‘ time be given to cure the defective applications by
the concerned Advocates and to all such advocates to submit their
complete application forms for necessary verification of their degrees if
they have not submitted the same earlier, from the date of publication of
advertisement in two leading newspapers, one in English language and the
other in regional language having wide circulation in the respective
State/Union Territories, for which advertisement shall be published within
7 days from the passing of this order.
(2) 1 (one) month time for verification of applications, without any
charge, by the State Bar Councils, after the expiry of the above 15
(fifteen) days.
(3) The University Authorities shall ensure the verification of degrees
awarded by them, without any charge, within 1 (month) on its
presentation.
(4) The respective State Bar Councils shall publish a Final Electoral Roll
by including the names and particulars of such advocates whose degrees
attached with the application forms have been verified by the concerned
University authorities. The names of all such advocates who have not
removed the defects in the application forms already submitted within the
specified time and also such persons whose degrees on verification have
been found false or fake by the University authorities shall not be included
in the Electoral Rolls.
(5) Bar Council of India to declare the schedule of elections in respective
State Bar Councils to be held after the expiry of 75 (seventy five) days, as
mentioned above, within one week mentioning therein:-
(i) 15 days for nomination.
(ii) 1 week for withdrawal of nomination.
(iii) to upload final candidates‘ list in 1 (one) week.
(iv) to decide the date of election.
Court further make it clear that all the steps be taken by all the parties
concerned in the matter for the purpose of elections in respect of all the
Bar Councils where the term of the existing members have already
expired or to be expired. We further make it clear that although this order
has been passed in favour of the verification only for the purpose of the
election but it would also include for the purpose of the verification of all
other learned lawyers who have already applied within the time stipulated
by this Court. Ajayinder Sangwan and Ors. v. Bar Council of Delhi &
Ors., 2017 (9) SCALE 561
Arbitration Act:
Arbitration – Construction of a contract – Lies within the province of
the arbitral tribunal – More so when based on relevant evidentiary
material
The arbitrator has taken the view that the provision for price escalation
would not bind the claimant beyond the scheduled date of completion.
This view of the arbitrator is based on a construction of the provisions of
the contract, the correspondence between the parties and the conduct of
the Board in allowing the completion of the contract even beyond the
formal extended date of 6 September 1983 up to 31 January 1986. Matters
relating to the construction of a contract lie within the province of the
arbitral tribunal.
Moreover, in the present case the view which has been adopted by the
arbitrator is based on evidentiary material which was relevant to the
decision. Assam State Electricity Board V. Buildworth Pvt. Ltd. 2017
(5) Supreme 405

Arbitration and Conciliation Act

Appointment of arbitrator – Failure of procedure as agreed or
contravention of inherent facet of arbitration clause – No
appointment of arbitrator can be made
Courts in certain circumstances have exercised the jurisdiction to
nullify the appointments made by authorities as there has been failure of
procedure or ex facie contravention of the inherent facet of the arbitration
clause. TRF Ltd. V. Energo Engineering Projects Ltd. 2017 (5)
Supreme 358
Part 1 - Ss. 2(2), 20—Seat of arbitration—Part I relating to domestic
arbitration—Applicability
Arbitration agreement is not silent as to what law and procedure is to be
followed. On the contrary, Clause 14.1 lays down that the arbitration
proceedings shall be in accordance with the Rules of Conciliation and
Arbitration of the ICC. There is a clause in the SHA that the governing
law of SHA would be laws of India. The aforesaid agreement has already
been interpreted by the English Courts to mean that the parties have not
simply provided for the location of hearing to be in London. When
agreement in question has been interpreted and it has been held that
London is not mentioned as mere location but Courts in London will have
jurisdiction, then another interpretative perception is unacceptable. Thus,
agreement in question having been interpreted in a particular manner by
English Courts and said interpretation having gained acceptation by
Supreme Court, inescapable conclusion is that Courts in India have no
jurisdiction. Roger Shashopua V. Mukesh Sharma, AIR 2017 SC 3166

Sec. 11(6) – Designated Judge entitled to adjudicate upon his

jurisdiction.
It is worthy to note here that in the said case, the Court set aside the
impugned order as the designated Judge had entered into the billing
disputes, which he could not have.
….Apart from the fact that the designated Judge, can, at the initial
stage, adjudicate upon his jurisdiction, he is also entitled to scrutinize the
existence of the condition precedent for the exercise of his power and also
the disqualification of the arbitrator or arbitrators. TRF Ltd. V. Energo
Engineering Projects Ltd. 2017 (5) Supreme 358
Ss. 34, 35 & 36 – CPC Sec. 47; O. 21 R. 1- Arbitration award- Finality
of arbitral award- Award has to be enforced for recovery of the
awarded amount like a decree of the civil court under the Code-
Executing Court has to execute the decree as it is and it cannot go
behind the decree
Sec. 35 gives finality to every arbitral award and makes the award binding
on the parties and all persons claiming under them. So far as Section 36 is
concerned, it deals with execution of the award. It says that once the Court
dismisses the application filed under Section 34 of the Act or if no such
application is made and time has expired for making such application, the
award shall be enforced as if it is a decree of the Court and the
enforcement of the award shall be under the Code.
The facts of the case, court find firstly, the award is under the Act;
Secondly, the award was challenged under Section 34 by the respondents
before the Additional District Judge but the challenge failed vide order
dated 03.11.2012 of the Additional District Judge, Jalandhar; Thirdly, the
order dated 03.11.2012 attained finality because the matter was not
pursued by the respondents in appeal to the High Court; Fourthly, the
award, in consequence, also attained the finality by virtue of Sections 35
and 36 of the Act; Fifthly, the award was and continues to be binding on
the appellant and the respondents; Sixthly, the award acquired the status
of a decree of the civil court by virtue of Section 36 of the Act; Seventhly,
the award has to be enforced for recovery of the awarded amount from the
respondents like a decree of the civil court under the Code. It is a well-
settled principle of law that the executing Court has to execute the decree
as it is and it cannot go behind the decree. Likewise, the executing Court
cannot hold any kind of factual inquiry which may have the effect of
nullifying the decree itself but it can undertake limited inquiry regarding
jurisdictional issues which goes to the root of the decree and has the effect
of rendering the decree nullity.
It is pertinent to mention here that the executing Court did not decide any
of the objections (nine) set out above but confined its inquiry to one
statement of accounts filed by the respondents, which according to them,
was given to them by the appellant. The executing Court, on perusal of the
account statement, held that a sum of Rs.3,37,885/- was paid by the
respondents to the appellant on 29.08.2011 which, as per the statement,
was credited in appellant's account and hence such payment having been
made has resulted in fully satisfying the decree in question and, therefore,
the respondents are not liable to pay any amount towards decree in
question. It is essentially with this factual finding, the executing Court
came to a conclusion that the award/decree stood fully satisfied and hence
no recovery of any awarded amount can be made and, therefore, dismissed
the appellant's execution application. Punjab State Civil Supplies
Corporation Ltd. & Anr. V. M/s Atwal Rice & General Mills Rep. by
Its Partners, 2017 (7) SCALE 691

Arms Act
Ss. 3(1), 21, 21(1); 25(1B(a) and 25(1B) (h) – Applicability of
Sec. 25(1B)(a) and (h) both provide for different conditions for an
offence which is punishable under the provision. The fact that the licence
has been renewed, may be relevant in reference to section 21 (1) read with
Sec. 25(1B) (h) but offence under sec. 3(1) read with Ss. 21 and 25(1B)(a)
independently stands.
We are thus of the view that by mere renewal of the licence of the
appellant, the offence which is alleged on 24.04.2011 cannot be held to be
washed out. Harpreet Singh V. State of Himachal Pradesh 2017 (6)
Supreme 289

BAIL
Bail – When already rejected by the High Court and Supreme Court
– Validity of
As is demonstrable, the learned trial Judge has not been guided by the
established parameters for grant of bail. He has not kept himself alive to
the fact that twice the bail applications had been rejected and the matter
had travelled to this Court. Once this Court has declined to enlarge the
appellants on bail, endeavours to project same factual score should not
have been allowed. It is absolute impropriety and that impropriety calls
for axing of the order. Virupakshappa Gouda and another vs. State of
Karnataka and another, (2017) 2 SCC (Cri) 542 ; (2017) 5 SCC 406.

Civil Procedure Code:

Sec. 11—Resjudicata—Suit for partition of ancestral property—
Another suit filed by father of plaintiff for partition of same property,
dismissed—Suit barred by res judicata
The suit filed by respondents, as plaintiffs, for partition and
injunction against dispossession was dismissed by the learned trial Court
on the ground that the suit was barred on the principle of res judicata. In
first appeal the decree of dismissal has been reversed and the matter
remitted to the learned trial Court for a decision on merit.
The reversal made by the learned first appellate Court is based upon a
finding that though there was a previous suit for possession against the
father of the plaintiffs (Harmeet) by his own father (S. Dalip Singh)
(grand-father of the plaintiffs and father of the appellants) wherein the
father of the appellants (S. Dalip Singh) had claimed the suit property to
be his own and the said defence of the father of the plaintiffs was
negatived, the decree in the aforesaid suit would not operate as a res
judicata inasmuch as the parties had not been litigating under the same
title. Moreover, there was another suit filed by the father of respondents
plaintiffs for partition of the same property which was dismissed. The
same view was taken by the High Court with regard to the said suit.
In view of the earlier decree passed in the suit(s) referred to above Court
does not see how the present suit filed by the respondents plaintiffs can be
held to be maintainable. It was, according to us, clearly barred on the
principle of res judicata and the learned first appellate court had seriously
erred in reversing the decree of dismissal passed by the learned trial Court.
S. Saranjeet Singh V. S. Jaskirat Singh, AIR 2017 SC 3440

Sec. 47—Arbitration and Conciliation Act, S. 36—Execution of

decree—Arbitral award—Objections—Award attaining finality as
decree of Civil Court—Objections cannot be allowed to be raised in
execution petition
All the objections referred above ought to have been raised by the
respondents before the Arbitrator or/and Additional District Judge under
Section 34 of the Act but certainly none of them could be allowed to be
raised in execution once the award became final and attained finality as
decree of the Civil Court.
In other words, having regard to the nature of objections, it is clear that
such objections were not capable of being tried in execution proceedings
to challenge the award. It is or the reason that they were on facts and
pertained to the merits of the controversy, which stood decided by the
Arbitrator resulting in passing of an award. None of the objections were in
relation to the jurisdiction of the Court affecting the roof of the very
passing of the decree. If the executing Court had probed these objections
then it would have travelled behind the decree, which was not permissible
in law. An inquiry into facts, which ought to have been done in a suit or in
a appeal arising out of the suit or in proceedings under Section 34 of the
Act, cannot be held in execution proceedings in relation to such
award/decree. Punjab State Civil Supplies Corporation Ltd. V. M/s.
Atwal Rice and General Mills, Rep. by its Partners, AIR 2017 SC
3756

Sec. 96, O. 41 R. 31- Appeal- Judgment of the appellate Court has to

state the reasons for the decision- First appellate Court not to just
quote passages from the trial Court Judgment – Effect of
It is well settled in law that the reason is the life of law. It is that filament
that injects soul to the judgment. Absence of analysis not only evinces
non-application of mind but mummifies the core spirit of the judgment. A
Judge has to constantly remind himself that absence of reason in the
process of adjudication makes the ultimate decision pregnable.
While reversing the finding and conclusions of the trial Court, the duty of
the first appellate court is different than while affirming a judgment. Be it
stated, the Court has also held that it is a final court of law in the sense
that its a question of law even if erroneous may not be vulnerable before
the High Court in second appeal because the jurisdiction of the High
Court has now ceased to be available to correct the errors of law or the
erroneous findings of the first appellate court even on questions of law
unless such question of law is a substantial one.
Thus, in the first appeal the parties have right to be heard both on the
questions of facts as well as on 6 (2005) 10 SCC 243 7 (2011) 12 SCC
174 law and the first appellate court is required to address itself to all the
aspects and decide the case by ascribing reasons.
On a perusal of the said Rule, it is quite clear that the judgment of the
appellate court has to state the reasons for the decision. It is necessary to
make it clear that the approach of the first appellate court while affirming
the judgment of the trial Court and reversing the same is founded on
different parameters as per the judgments of this Court.
In the case at hand, as we have noted earlier, the learned Judge has really
not ascribed any reason. There has been no analysis of facts or law. There
is no discussion with regard to the points urged. While agreeing with the
general approval of reasons to support the conclusions of the judgment in
appeal, the High Court has to keep in view the language employed in
Order XLI Rule 31 CPC and the view expressed in Santosh Hazari
(supra). Analysis and reason are to be manifest. When that is not done,
needless to say, the judgment of the High Court becomes indefensible. U.
Manjunath Rao V. U. Chandrashekar & Anr. 2017 (8) SCALE 488 :
AIR 2017 SC 3591

Sec. 99 r/w Sec. 141 – No suit can be dismissed in appeal or revision

for misjoinder or nonjoinder of parties.
The provision, in our view, is crystal clear. No decree can be reversed or
substantially varied in appeal on account of misjoinder or non – joinder of
parties. Under Sec. 141 of the Code of Civil Procedure, procedure under
the Code in regard to suit shall be followed as far as it can be made
applicable to proceedings in any Court of Civil jurisdiction. Therefore,
what is provided under Section 99 of the Code of Civil Procedure in
respect of appeal would apply to revision as well. Manti Devi V. kishun
Sah @ Kishun Deo Sao 2017 (5) Supreme 104

Sec. 100 –Trial court and first appellate court returning concurrent
findings of fact – High Court in second appeal reversing the same –
No perversity in the findings of first appellate– High Court order set
aside.
First appellate court is the last court on facts. The Hon‘ble Court
finds no perversity in the findings of the first appellate court. The said
court has found on admission that there was landlord-tenant relationship.
After entering such a finding only, the eviction was ordered on the ground
of arrears of rent. There is no dispute on these facts. On the right to sell
the property by the first respondent‘s father, the findings are concurrent.
In that view of the matter, we allow the appeal, set aside the impugned
judgment of the High Court and restore that of the first appellate court.
Satish Chand (D) by LRs. V. Kailash Chand 2017 (5) Supreme 206

Sec. 151 & O. 21, R. 32- Application under S. 151 CPC for grant of
police protection-Filed in execution Court for execution of decree
passed in suit for permanent injunction- Execution Court granted it-
High Court interfered with order holding that the application should
have been filed only under O. 21, R. 32 CPC-An exact provision not
invoked, that by itself shall not be a reason for rejecting the
application-Rejection improper, order passed by Execution Court
restored.
But merely because an application for police protection was filed only
under Section 151 CPC invoking the inherent jurisdiction, it cannot be a
reason for the High Court to reject it and hold that the application should
have been filed under Order XXI, Rule 32 CPC. The crucial question is
whether the Execution Court has jurisdiction. That is not disputed. The
only thing is that an exact provision was not invoked. That by itself shall
not be a reason for rejecting the application (See Municipal Corporation of
the City of Ahmedabad v. Ben Hiraben Manila,(1993) 2 SCC 422 and T.
Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633). In case, the Execution
Court has the jurisdiction and has otherwise followed the procedure under
the Rules, the action has to be upheld. One relevant question is also
whether the judgment debtor has suffered any injury or whether any
prejudice has been caused to him. If the answer is in the negative, as in the
instant case, the execution must proceed. The impugned judgment is
hence set aside, the appeal is allowed and the order passed by the
Execution Court is restored.
There shall beno orders as to costs. Raja Venkateswarlu and another V.
Mada Venkata Subbaiah and another, 2017 (3) ARC 7

O. 1, R. 8 – Representative suit – Binding judgment – Judgment of

1995 deciding representative suit – Extent of binding effect.
The representative suit was decided in 1995 and the judgment is binding
even on those who were not parties to the case. All the Parishioners are
bound by the judgment to the extent it has decided the matter. K.S.
Varghese V. St. Peter‘s & Paul‘s Syrian Orth. 2017 (5) Supreme 207

O. 1 R. 8- Travancore Cochin Literary Scientific and Charitable

Societies Act, 1955- Representative suit- Requirements of O. 1 R. 8,
CPC for filing as suit in a ‗representative capacity‘ – Consideration
of- Whether the trial Court was justified in allowing the plaintiff to
file suit in a representative capacity without deciding several material
questions- Held, No- This court remands the matter to the trial Court
for answering the issues raised
In our considered opinion, while deciding Issue No. 1, the Trial Court was
expected to decide several material questions, namely, whether the
plaintiff, who is a juristic person, i.e., ―Society" is entitled to invoke the
provisions of Order 1 Rule 8 of the Code for filing a suit in a
"representative capacity―. In other words, the Trial Court should have
examined the question as to whether the expression "person" occurring in
Rule 8 also includes ―juristic person". Secondly, if the plaintiff is held
entitled to file such suit, whether the facts pleaded and the reliefs claimed
in the plaint can be said to be in the nature of representative character so
as to satisfy the ingredients of Order 1 Rule 8 of the Code which are
meant essentially for the benefit of public at large for grant of any relief
and lastly, if the facts pleaded and the reliefs claimed in the plaint do not
satisfy the requirements of Order 1 Rule 8 of the Code for grant of relief
to the public at large then whether such suit is capable of being tried as a
regular suit on behalf of the plaintiff for granting reliefs in their personal
capacity because the suit relates to ownership of land, namely, who is the
owner of the suit land.
Since there was neither any discussion much less finding on any of the
aforesaid issues by any of the Courts below though these questions
directly and substantially arose in the case (Issue No. 1), we are of the
considered opinion that it would be just and proper and in the interest of
justice to remand the case to the Trial Court to answer these issues and
then decide the suit depending upon the answer in accordance with law.
S.N.D.P. Sakhayogam v. Kerala Atmavidya Sangham & Ors. 2017
(11) SCALE 84

O. 2, R. 2 – Applicability of – Cause of action in previous suit

different from cause of action in present suit - O. 2, R. 2 does not
apply.
The second question raised on behalf of the appellants as to the suit
being barred by O. 2 R. 2 of the CPC, suffice it to say that the earlier
suit based on different cause of action for a declaration for one-half of
the share in certain other properties was filed by Anandibai in the
year 1963. At that time the property in question was not included in the
suit. It had been found by courts below, the suit of 1963 was based on
different cause of action on the basis of deed of 1957 whereas in the
instant case, cause of action is different. It is on the basis of death of
absolute owner Shakuntalabai in the year 1962, Anandibai became
owner and plaintiffs had in turn inherited from Anandibai. Thus the
cause of action of the suit in the present case for partition is different
and dispute as to mutation had been subsequently decided. Thus, the suit
for partition as filed, could not be said to be barred by O.2, R.2, CPC. The
defendants were trying to sell the property in the year 1979 as such the
plaintiffs in the suit prayed for partition and separate possession.
Plaintiffs could not have claimed interest in the land in the life-time of
Anandibai and the cause of action in the previous suit for declaration of
title filed by Anandibai was materially different. Bapusaheb
Chimasaheb Naik Nimbalkar (Dead) through LRs V. Mahesh
Vijaysinha Rajebhosale, 2017 (4) Supreme 593
O.7 R. 11, O. 6 R. 16- Rejection to plaint- plaint as a whole alone can
be rejected under Order VII Rule 11, CPC – It is only where the
plaint as a whole does not disclose a cause of action that Order VII
Rule 11 applies and interdicts a suit from proceeding –if the plaint
survives against certain defendants and/or properties, Order VII
Rule 11 will have no application at all, and the suit as a whole must
then proceed to trial
What is important to remember is that the provision refers to the "plaint"
which necessarily means the plaint as a whole. It is only where the plaint
as a whole does not disclose a cause of action that Order VII Rule 11
springs into being and interdicts a suit from proceeding.
It is settled law that the plaint as a whole alone can be rejected under
Order VII Rule 11.
This cannot elevate itself into a rule of law, that once a part of a plaint
cannot proceed, the other part also cannot proceed, and the plaint as a
whole must be rejected under Order VII Rule 11. In all such cases, if the
plaint survives against certain defendants and/or properties, Order VII
Rule 11 will have no application at all, and the suit as a whole must then
proceed to trial.
If only a portion of the plaint, as opposed to the plaint as a whole is to be
struck out, Order VI Rule 16 of the CPC would apply.
It is clear that Order VI Rule 16 would not apply in the facts of the present
case. There is no plea or averment to the effect that, as against the
Directors, pleadings should be struck out on the ground that they are
unnecessary, scandalous, frivolous, vexatious or that they may otherwise
tend to prejudice, embarrass or delay the fair trial of the suit or that it is
otherwise an abuse of the process of the Court.
The Court is vested with a discretion under this order to deal with an issue
of law, which it may try as a preliminary issue if it relates to the
jurisdiction of the Court, or is a bar to the suit created for the time being in
force. Obviously, this provision would apply after issues are struck i.e.
after a written statement is filed. This provision again cannot come to the
rescue of learned counsel for the respondent.
This being the case, we set aside the impugned judgment and grant the
defendants in the suit a period of eight weeks from today within which to
file their written statement after which the suit will proceed to be tried.
Sejal Glass Ltd. V. Navilan Merchants Pvt. Ltd. 2017 (11) SCALE
238

O. 9 R., 13; O. 43 R. 1 (c) & 1 (d); Section 141- Limitation Act, 1963-
Section 5 –Setting aside decree ex-parte against defendants- Appeal
from orders - Maintainability
High Court held that appeal filed by appellant before the District Judge
against the order of trial Court dated 23.12.2005 was not maintainable-
High Court had also observed that restoration application filed by
appellant was also barred by time- Whether appeal filed by appellants
under Order XLIII Rule 1, CPC was maintainable- Held ,Yes . Jaswant
Singh & Ors.V. Parkash Kaur & Anr. 2017 (9) SCALE 123

O. 9, R. 13-Application for setting aside exparte decree-Decree in suit

for specific performance-Application rejected by all there Courts-
Facts of present case such that it becomes necessary in order to do
complete justice to set aside the three orders against appellant-Suit to
be decided on merits.
The present dispute arises out of an ex-parte decree of 09.06.1987 which
was sought to be set aside under Order IX Rule 13 of the Code of Civil
Procedure, 1908.
The appellant before us, having knocked at the doors of the Court, has
been turned away by not less than three Courts. In that it was stated that
he had both been deemed to be served with the summons in the suit as
well as the fact that from the date of knowledge of the ex-parte decree,
had filed the application to set it aside a year and a half later.
The dispute in the present case relates to a residential house situated in
Munger, District Bihar. One Hira Mistry, father of the original appellant
No. 1 and grandfather of the appellant No. 2, was the owner of the said
house, which was let out to one Surendra Narayan Sinha. Eviction
proceedings were instituted by the said Hira Mistry against the said tenant
in which eviction was ordered on 21.12.1979; then reversed in first appeal
on 24.02.1986; and again reversed in second appeal on 02-04-1992.
Having regard to the peculiar facts and circumstances of the case and in
the interest of justice, we set aside the orders dated 11.12.2001 passed by
the trial Court, 29.05.2004 by the Appellate Court and the impugned order
dated 31.08.2005 passed by the High Court, all of which result in our
setting aside the ex0parte decree dated 09.06.1987,and direct that suit No.
14 of 1986 be set down for hearing on merits.
Since the suit is pending for a long time before the Sub-Judge, Munger,
We direct that the said suit be heard and disposed of within a period of
one year from today.
It is difficult to fault the trial Court and the Appellate Court when they
dismissed the application under Order IX Rule 13. Both the grounds given
cannot be said to be perverse. However, the facts of the present case are
such that it has become necessary for us, in order to do complete justice,
to set aside the three orders against the appellant. Laldhari Mistri (Dead)
Thr. Lrs. And another V. Vijay Kumar, 2017(3) ARC 13

O. 14, R. 2—Preliminary issue—Issues of redemption of mortgage

and suit whether barred by limitation—Are mixed questions of law
and facts—Cannot be decided as preliminary issues
In Court‘s opinion, the issues which were decided as preliminary
issues with respect to redemption of the mortgage as well as with regard
to Limitation could not have been decided as preliminary issues by the
trial court being mixed question of law and facts. The plaintiff has clearly
averred in the plaint that there was redemption and thereafter land
acquisition of the land took place which was quashed and case was
decided in their favour as such they continued to be in possession of land.
In the circumstances, question of factum of redemption and its legality
could not have been decided as preliminary issue. The trial court grossly
erred in law in treating the aforesaid as preliminary issues. The orders
passed by the District Court as well as by the High Court on 4.4.2014
were proper and have been illegally set aside by the impugned order. The
matter is remitted to the trial court to decide said issue along with other
issues after recording the evidence. Hareendran V. Sukumaran, AIR
2017 SC 2697

O. 21, R. 90—Auction sale—Setting aside—Improper valuation of

property at time of sale—Sufficient ground to set aside sale
Though there may be some dispute as to what was the actual value
of the property that was sold in auction at the time of sale, it could not be
disputed at the Bar that actual value of the property in question was much
more than Rs. 5,50,000. Court also finds that no property valuation was
done of this property at the time of sale. In fact, the valuation report filed
by the appellant shows that it is more than Rs. 1 crore, as observed by the
learned District Judge. This according to us, in sufficient ground to set
aside the sale.
Court also find that the amount under decree which was payable
was not much and was even less than Rs.4 lakhs as on the date of the sale.
That becomes an added reason to set aside the sale of the property, the
value of which was much higher. Learned counsel for the appellant fairly
stated at the Bar that the appellant was ready to refund the amount paid by
respondent NO.1. Court is of the opinion that the equity would be
balanced by directing the appellant to refund the said amount along with
interest at the rate of 12 per cent from the date of payment and also the
cost of litigation to respondent No. 1, which is quantified at Rs. 1 lakh.
Sanjay V. Anil S/o. Shankarsa Pawar, AIR 2017 SC 2565

O. 22 Rr. 3 and 4 – Appellant and respondents dying during pendency

of second appeal – Their legal representatives not brought on record
– Suit against such parties abates automatically on expiry of 90 days
from the date of death of the party.
The law on the point is well settled. On the death of a party to the
appeal, if no application is made by the party concerned to the appeal or
by the legal representatives of the deceased on whom the right to sue has
devolved for substitution of their names in place of the deceased party
within 90 days from the date of death of the party, such appeal abates
automatically on expiry of 90 days from the date of death of the party. In
other words, on 91st day, there is no appeal pending before the Court. It is
―dismissed as abated‖.
 O. 22 R. 3(2) which applies in the case of the death of
plaintiff/appellant and O. 22 R. 4(3) which applies in the case of
defendant / respondent provides the consequences for not filing the
application for substitution of legal representatives by the parties
concerned within the time prescribed.
In the case at hand, both the aforementioned provisions came in
operation because the appellant and the two respondents expired during
the pendency of second appeal and no application was filed to bring their
legal representatives on record. As held above, the legal effect of the non-
compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into
operation resulting in dismissal of second appeal as abated on the expiry
of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court,
therefore, ceased to have jurisdiction to decide the second appeal which
stood already dismissed on 10.08.1994. Indeed, there was no pending
appeal on and after 10.08.1994. Gurnam Singh (D) Thr. Lrs. V.
Gurbachan Kaur (D) by Lrs. 2017(4) Supreme 549

O. 22, R. 9 – Revival of suit abated under O. 22, Rr. 3 and 4 – Effect

of.
In Hon‘ble Court‘s considered view, the appeal could be revived
for hearing only when firstly, the proposed legal representatives of the
deceased persons had filed an application for substitution of their names
and secondly, they had applied for setting aside of the abatement under O.
22, R. 9 of the Code and making out there in a sufficient cause for setting
aside of an abatement and lastly, had filed an application under Sec. 5 of
the Limitation Act seeking condonation of delay in filing the substitution
application under O. 22 Rr. 3 and 4 of the Code beyond the statutory
period of 90 days. If these applications had been allowed by the High
Court, the second appeal could have been revived for final hearing but not
otherwise. Such was not the case here because no such applications had
been filed. Gurnam Singh (D) Thr. Lrs. V. Gurbachan Kaur (D) by
Lrs. 2017(4) Supreme 549

O. 41, R. 27—Additional evidence in appeal—Permissibility of

The appellants has preferred the appeal aggrieved by the judgment
and order passed by the High Court in second appeal by setting aside the
remand order passed by the Additional District Judge, Patiala on
25.01.2003 by which the defendant-appellant had been allowed to produce
certified copies of the orders of the Assistant Collector and further to
adduce additional evidence with respect to the Will dated 30.11.1987 by
permitting them to place on record the original registered Will dated
30.11.1987.
In this case, Court find that the District Court was justified in
giving opportunity to adduce the additional evidence in the peculiar fact
and circumstances of the case which was discretionary order and legally
justified one. Litigant could not have punished for no fault on his part.
Thus the High Court has erred in setting aside the order of the remand
passed by Additional District Judge on 21.5.2003. The judgment and
order of the High Court cannot be said to be justified in the facts and
circumstances of the case.
Thus Court set aside the order of the High Court and restore that of
the Additional District Judge. Consequently trial court to record the
evidence within six months from the date of first appearance of the parties
and make an endeavour to decide the suit as early as possible preferably
within a period of nine months. Satnam Singh V. Malook Singh, AIR
2017 SC 3749
O. 41, Rr. 27, 28—Additional evidence—Allowing application by
Appellate Court- Procedure under R. 28, necessary to be followed and
document should have been proved
It transpires that the High Court has not questioned the order
passed by the First Appellate Court in allowing the application of the
appellants under Order XLI, Rule 28 of the Code of Civil Procedure,
1908. It means that insofar as exercise of the discretion by the First
Appellate Court on this aspect was concerned, no fault was found there
with and though the High Court rightly held that once the application
under Order XLI Rule 27 of the Code of Civil Procedure, 1908 was
allowed, the procedure contemplated under Order XLI, Rule 28 of the
Code of Civil Procedure, 1908 should have been followed by the First
Appellate Court and the document in question, which was Exhibit – A10,
should have been proved in accordance with law. This was not done and
the First Appellate Court simply acted upon the said Exhibit – A10 and on
that basis passed the decree in favour of the appellants. However,
thereafter the manner in which the High Court proceeded is also
blemished to some extent. The High Court has set aside the decree passed
by the First Appellate Court simply because the procedure contemplated
under Order XLI, Rule 28 of the Code of Civil Procedure, 1908 was not
followed. In a situation like this more appropriate course of action for the
High Court was to remit the case to the First Appellate Court with a
direction to follow the procedure as contemplated under Order XLI, Rule
28 of the Code of Civil Procedure, 1908 and thereafter decide the first
appeal which was filed by the appellants herein. Alamelu Ammal V. S.
Rani, AIR 2017 SC 2612
O. 41, R. 31 read with Sec. 96 – First Appeal – Reasoned order –
Reason is life of law – It is that filament that injects soul to judgment
– Absence of analysis not only evinces non-application of mind but
mummifies core spirit of judgment.
It is well settled in law that the reason is the life of law. It is that
filament that injects soul to the judgment. Absence of analysis not only
evinces non-application of mind but mummifies the core spirit of the
judgment. A Judge has to constantly remind himself that absence of
reason in the process of adjudication makes the ultimate decision
pregnable. While dealing with the first appeal preferred under Section 96
C.P.C., the Court in State of Rajasthan V. Harphool Singh (dead) through
his LRs., (2000) 5 SCC 652 : [2000] 4 Supreme 215 took note of the
exception to the judgment passed by the first appellate court by observing
that there was no due or proper application of mind or any critical analysis
or objective consideration of the matter, despite the same being the first
appellate court. U. Manjunath Rao V. U. Chandrashekar 2017 (6)
Supreme 19

Constitution of India:
Arts. 19 & 21- Right of privacy- Whether there is any fundamental
right of privacy under the Constitution of India- This Court places
these matters before a Nine Judge Constitution Bench
Court has observed it has become essential for us to determine whether
there is any fundamental right of privacy under the India Constitution. The
determination of this question would essentially entail whether decision
recorded by this Court in M.P. Sharma and Ors. v. Satish Chandra,
District Magistrate, Delhi and Ors.-1950 SCR 1077 by an eight- Judge
Constitution Bench, and also in Kharak Singh v. the State of U.P. and Ors.
1962 (1)SCR 332 by a six- Judge Constitution Bench, that there is no such
fundamental right is the correct expression of the constitutional position.
Before dealing with the matter any further, court is of the view that the
issue noticed hereinabove deserves to be placed before the nine Judges
Constitution Bench. List these matters before the Nine- Judge Constitution
bench on 19.07.2017. Justice K.S. Puttaswamy (Retd.) and Anr. V.
Union of India and Ors., 2017 (8) SCALE 38
Art. 30(1) – Minority institutions – Appointment of headmaster or
principal of choice – Right is absolute
As far as the selection and appointment of the Headmaster or the
Principal, as the case may be, is concerned, this Court in Secy. Malankara
Syrian Catholic College Vs. T. Jose and Others , reported in (2007) 1 SCC
386 , after referring to all the celebrated cases on minority rights, viz. T
M A Pai Foundation v. State of Karnataka [(2002) 8 SCC 481],
P.A. Inamdar vs. State of Maharashtra [(2005) 6 SCC 537], State of
Kerala v. Very Rev. Mother Provincial [(1970) 2 SCC 417], The
Ahmedabad St. Xavier‘s College Society v. State of Gujarat [(1974) 1
SCC 717], Frank Anthony Public School Employees‘ Association v
Union of India [(1986) 4 SCC 707], Rev.Sidhajbhai v. State of Bombay
[(1963) 3 SCR 837], D.A.V. College v. State of Punjab [(1971) 2 SCC
269], All Saints High School v. Government of A.P. [(1980) 2 SCC 478],
St. Stephen‘s College v. University of Delhi [(1992) 1 SCC 558], N.
Ammad v. Manager, Emjay High School [(1998) 6 SCC 674], Board of
Secondary Education & Teachers Training v. Joint Director of Public
Instructions [(1998) 8 SCC 555], has held in Paras 27 to 29 that the
Management of a minority aided educational institution is free to appoint
the Headmaster or the Principal, as the case may be, of its own choice and
has no obligation to appoint the available senior qualified member from
the same community. Manager, Corporate Educational Agency V.
James Mathew 2017 (6) Supreme 306

Art. 32 – Matters relatable to service conditions – Cannot be raised

under Article 32 – Should be determined by appropriate authority
either under the Act or under cognate provisions of law like
Industrial Disputes Act 1947 etc.
As the writ petitions seeking interference with transfer/termination, as the
case may be, are concerned, it appears that the same are relatable to
service conditions of the concerned writ petitioners. Adjudication of such
question in the exercise of high prerogative writ jurisdiction of this Court
under Article 32 of the Constitution would not only be unjustified but
such questions should be left for determination before the appropriate
authority either under the Act or under cognate provisions of law
(Industrial Disputes Act, 1947 etc.), as the case may be. Avishek Raj V.
Sanjay Gupta 2017 (5) Supreme 179

Arts. 32, 142—Police reforms — Investigation — Scientific

investigation is need of hour
It is time that report of Law Commission of India and decision of
this Court in Prakash Singh are given very serious thought and in addition
a greater degree of professionalism is introduced in investigations into
offences alongwith scientific methods and techniques of investigation and
use of technology. Rakesh Kumar Paul V. State of Assam, AIR 2017
SC 3948
Art. 136—Limitation Act. S.5—Special Leave Petition (SLP)—Delay
in filing by CBI—Explanation offered by CBI subserves ends of
justice—Delay, ought to be condones
In view of the averments made in the applications Court is satisfied that
delay has been sufficiently explained and considering the facts and
circumstances of the case, gravamen of matter and also the divergent
views taken by the same Judge of the High Court in the same case vis a
vis different accused persons on same question, Court consider it our duty
not to throw away petition on the ground of delay. The explanation
offered by the CBI of movement of file so as to condone the delay so as to
subserve the ends of justice, deserves to be accepted. No doubt about it
that the CBI ought to have acted with more circumspection and ought to
have followed the CBI Manual. It is regrettable that Court is receiving
majority of the special leave petitions filed in this Court barred by
limitation not only on behalf of the Government but also by the other
private litigants. Not only that the special leave petitions are preferred
with the delay but in refiling also enormous time is consumed and this
Court in order to advance substantial justice is not throwing away cases
only on limitation. State of Jharkhand through S.P., CBI V. Lalu
Prasad alias Lalu Prasad Yadav, AIR 2017 SC 3389

Art. 137 – Appeal in criminal matter – Jurisdiction of Supreme Court

well defined in (1976) 4 SCC 158
The jurisdiction of this Court in criminal appeals filed against concurrent
findings is circumscribed by principles summarised by this Court in
Dalbir Kaur v. State of Punjab, (1976) 4 SCC 158, as follows:
―8. Thus the principles governing interference by this Court in a criminal
appeal by special leave may be summarised as follows:
―(1) that this Court would not interfere with the concurrent finding of fact
based on pure appreciation of evidence even if it were to take a different
view on the evidence;
(2) that the Court will not normally enter into a re-appraisement or review
of the evidence, unless the assessment of the High Court is vitiated by an
error of law or procedure or is based on error of record, misreading of
evidence or is inconsistent with the evidence, for instance, where the
ocular evidence is totally inconsistent with the medical evidence and so
on;
(3) that the Court would not enter into credibility of the evidence with a
view to substitute its own opinion for that of the High Court;
(4) that the Court would interfere where the High Court has arrived at a
finding of fact in disregard of a judicial process, principles of natural
justice or a fair hearing or has acted in violation of a mandatory provision
of law or procedure resulting in serious prejudice or injustice to the
accused;
(5) this Court might also interfere where on the proved facts wrong
inferences of law have been drawn or where the conclusions of the High
Court are manifestly perverse and based on no evidence.‖ Sonu @ Amar
V. State of Haryana 2017(5) Supreme 816

Art. 227 – Eviction suit ends with delivery of possession – Orders

concerning thereof could not be opened in absence of any prima facie
case – opened in absence of any prima facie case made out on
jurisdictional issues.
In our considered view, once the possession had been delivered and
decree was recorded as satisfied in accordance with law, the litigation had
come to an end leaving no lis pending. In these circumstances, in the
absence of any prima facie case having been made out on any
jurisdictional issue affecting the very jurisdiction of the Court in passing
the eviction decree, the High Court should have declined to examine the
legality of four orders impugned therein. Hameed Kunju V. Nazim 2017
(5) Supreme 565

Arts. 233, 234 and 235 – High Court‘s powder of superintendence

over subordinate judiciary – Falls short of dismissal, removal,
reduction in rank or termination – In these matters High Court
becomes only the recommending authority – Instantly, High Court
passing order Annexure P-16 retiring appellant at age of 58 years
w.e.f. 31.7.2005 – Division Bench instead of quashing Annexure P-16
treating it as its recommendation – Governor accordingly retiring
appellant on 31.7.2007 w.e.f. 31.7.2005 – Not permissible – Nobody
can be retired retrospectively.
In the instant case, the appellant had not been retired by the appointing
authority, namely, the Governor of Himachal Pradesh. Therefore, it cannot
be said that the appellant had retired on the completion of age of 58 years.
Instead of quashing the notification at Annexure P-16, the Division Bench
treated the said notification as recommendation of the High Court to the
Governor for removal of the services of the appellant. This order was
passed after the appellant had completed the age of 60 years. In terms of
the order of the Division Bench, the Governor has passed an order dated
31.1.2017 retrospectively retiring the appellant with effect from
31.7.2005, which, in our view, is not permissible in law. The Himachal
Pradesh Judicial Service Rules, 2004 do not provide for retrospectively
retiring the judicial officers. The order of the High Court retiring the
appellant at the age of 58 years cannot take effect as it was without
authority of law. It only means that the appellant has to be treated to have
8 been retired from service on completion of 60 years of age on
31.7.2007.
We are of the view that the order of the Division Bench treating the
recommendation of the High Court to the Governor for compulsorily
retiring the appellant cannot be sustained. The order of the Division Bench
to that extent is hereby set aside. Consequently, the order of the Governor
dated 31.1.2017 is also set aside. P. D. Geol V. High Court of Himachal
Pradesh through its Registrar General 2017 (5) Supreme 795

Consumer Protection Act:

Section 24 B –CPC –Section 89- Legal Services Authority Act, 1987-
Speedy resolution of disputes - need to monitor- Mechanism for
settlement of disputes outside the Court- National Commission to
formulate an appropriate action plan- Provisions of Sec. 89, CPC
ought to be duly invoked by the Consumer Fora
Before parting with this order, it is necessary to refer to another important
aspect relating to administration of justice by the Consumer Fora. A
person coming to a consumer Court with a grievance of deficiency in
service needs immediate relief. The very object of setting up Consumer
Fora was to provide speedy remedy to a consumer. The Consumer
Protection Act, 1986 (the Act) was brought about in the background of
worldwide movement for consumer protection. Framework of the Act is
based on Resolution dated 9th April, 1985 of the General Assembly of the
UN to which India was a signatory5. The Act provided for protection of
interests of consumers in the form of quick and speedy redressal of
grievances. The provisions of the Act are in addition to and not in
derogation of any other law. Thus, the Act provides for additional
remedies. The authorities under the Act exercise quasi-judicial powers.
The award of damages is aimed at bringing about qualitative change in the
attitude of service provider.
In the light of above scheme and object of the Act, following issues have
emerged during the hearing with regard to functioning of Consumer Fora :
(i) Need to monitor speedy resolution of disputes;
(ii) Need to avail of ADR mechanism which is now regarded as
part of access to justice.
To achieve the object of providing speedy remedy to a consumer steps can
be taken under Section 24B of the Act. The National Commission has
administrative control over all the State Commissions. Thus, the National
Commission is competent to introduce monitoring mechanism for speedy
disposal. It is well known that matters are pending at (5 V. Krishna Rao
(supra) Para 43 6 Nivedita Sharma versus Cellular Operators Assn. of
India (2011) 14 SCC 337, paras 18 to 21) different levels for sufficiently
long period which defeats the very object and purpose of the Act. We
request the National Commission to consider this aspect and formulate an
appropriate action plan. In this regard, we may refer to a recent decision in
Hussain versus State of U.P.7 by which directions for action plans have
been issued. The National Commission may also consider use of video
conferencing facility for examining expert witnesses wherever necessary.
The other aspect relates to use of ADR. By Act 46 of 1999, Section 89 has
been added to CPC laying down mechanism for settlement of disputes
outside the Court. Even though strictly speaking, the said provision is
applicable only to civil courts, there is no reason to exclude its
applicability to Consumer Fora having regard to the object of the said
provision and the object of the consumer protection law. Accordingly, we
are of the view that the said provision ought to be duly invoked by the
Consumer Fora. We request the National Commission to issue appropriate
directions in this regard. Bijoy Sinha Roy (D) by LR. V. Biswanath Das
& Ors. 2017 (11) SCALE 391

Contempt of Courts Act:

Sec. 12 r/w Sec. 2(b) – Non-implementation or partial implementation
of Majthia Wage Board Award- Held, no willful disobedience of
Court Orders – Not liable for contempt.
The stand taken for what is alleged to be non-implementation or partial
implementation of the Award, as may be, having clearly stemmed from
the understanding of the Award of the concerned newspaper
establishments in a particular manner, it is our considered view that the
said establishments cannot be held to have willfully disobeyed the
judgment of this Court dated 07.02.2014 passed in Writ Petition No. 246
of 2011. At best, the default alleged has taken place on account of a wrong
understanding of the Award as upheld by this Court. This would not
amount to willful default so as to attract the liability of civil contempt as
defined under Section 2(b) of the Contempt of Courts Act, 1971. The
default alleged though is unmistakably evident to us, in the absence of any
willful or deliberate intention to commit the same cannot make any of the
newspaper establishments liable for contempt. On the other hand, they are
entitled to one more opportunity to implement the Award in its proper
spirit and effect in the light of what we now propose to say. Avishek Raj
V. Sanjay Gupta 2017 (5) Supreme 179

Criminal Justice System:

Doctors should be aware of medico-legal aspect of their duty – There
should not be dereliction in discharge of that duty.
My attention has been drawn to various judgments, which have addressed
the aspects of dereliction of duty by the doctors and importance of
medico-legal aspect in medical jurisprudence [refer State of Gujarat v.
Hasmukh @ Bhikha Gova Harijan, (1996) 1 GLR 292, Muniammal v.
The Superintendent of Police, Kancheepuram District, Kancheepuram,
Criminal Original Petition No. 12582 of 2007 (The High Court of
judicature Madras) and Dr. Indrajit Khandekar v. Union of India and Ors.,
W.P. No. 4974 of 2012 (High Court of judicature at Bombay: Nagpur
bench)]. It has to be remembered that every Reportable stakeholder in this
criminal justice system is expected to act with a sense of fairness to bring
out the truth so that punishment can be meted to those who deserve.
Although courts are provided with the duty to dispense justice, it cannot
be denied that effective dispensation of justice by the courts in this
country requires support of all the stakeholders. In light of the above,
every stakeholder is expected to be aware of their responsibility and work
towards achieving ends of the criminal justice system. Suresh Chandra
Jana V. The State of West Bengal 2017 (6) Supreme 35

Investigation – Negligent investigation or omissions or lapses, due to

perfunctory investigation – Need to be effectively rectified.
Regarding the defective investigation and prosecution, if a negligent
investigation or omissions or lapses, due to perfunctory investigation, are
not effectively rectified, the faith and confidence of the people in the law
enforcing agency would be shaken. Therefore the police have to
demonstrate utmost diligence, seriousness and promptness. [referRam
Bihari Yadav v. State of Bihar & Ors., (1998) 4 SCC 517].Suresh
Chandra Jana V. The State of West Bengal 2017 (6) Supreme 35
Criminal Procedure Code:
Sec. 154 – Delay in lodging FIR fully explained – Not fatal to
prosecution story.
The High Court has allowed itself to be swayed by the fact that the First
Information Report in the present case is delayed by twenty three days but
it has failed to appreciate the fact that the helpless woman, who was
admitted by the neighbours in the hospital, had moron husband and two
little kids at home, and none of them were able to go to police station and
get the First Information Report recorded. Observations of the trial court
while examining PW-4 Niranjan Gucchait that he is incapable to
understand questions and answers, and he could not be examined, has
been completely ignored by the High Court. It has come on the record in
the evidence of PW-2 Sudha Krishna Jana as to how when neighbours
rushed, he took the victim to the Hospital and got her admitted there.
PW-2 Sudha Krishna Jana, the neighbour, has further disclosed that when
the victim cried – ―Moregalam‖ (I am dying) and she told that the accused
had thrown acid on her, he took the victim to the hospital. He has further
stated that on way to hospital, the victim was first taken to Contai Police
Station but the police advised him to take the victim to Contai Sub
Divisional Hospital. It appears from the record that after the victim was
admitted in the hospital, neighbours did not bother to see her. In the
circumstances, we find that the delay in lodging the First Information
Report is fully explained on the record and is fatal for the prosecution
case.Suresh Chandra Jana V. The State of West Bengal 2017 (6)
Supreme 35
Sec. 167(2), Proviso (a)—Indefeasible right of ‗default bail‘—Cannot
be frustrated by prosecution on any pretext—Counsel of accused can
invoke the provision Art. 21 of Constitution of India
If the charge sheet is not filed and the right for ‗default bail‘ has
ripened into the status of indefeasibility, it cannot be frustrated by the
prosecution on any pretext. The accused can avail his liberty by filing an
application stating that the statutory period for filing the charge sheet or
challan has expired and the same has not yet been filed and therefore the
indefeasible right has accrued in his or her favour and further the accused
is prepared to furnish the bail bond. No subterfuge should be resorted to,
to defeat indefeasible right of accused for ‗default bail‘ during
interregnum when statutory period for filing charge-sheet or challan
expires and submission of charge-sheet or challan in court. Rakesh
Kumar Paul V. State of Assam, AIR 2017 SC 3948

Sec. 173 (8) – Scope of – Investigating agency invested with power to

seek and obtain approval of the court and thereafter conduct further
investigation at any stage – Magistrate cannot order further
investigation suo motu or on any application by informant after
cognizance has been taken on the basis of earlier report, process has
been issued and accused has entered appearance in response thereto.
The appellant had lodged an FIR against the respondents under Ss.
406, 420, 426, 467, 468, 471, 477B and 120B IPC. There was a dispute
between the parties relating to agricultural land and that the appellant /
informant had alleged forgery of the signatures and thumb impression of
his as well as of his family members in the register maintained by the
Notary (public).
 An application was filed at the culminating stages of the trial by the
appellant / informant seeking a direction under Section 173 (8) from the
Trial Court for further investigation by the police and in particular to call
for a report from the Forensic Science Laboratory as regards one
particular page of the register of the Notary (Public ), which according to
the appellant / informant was of debatable authenticity, as it appeared to
have been affixed / pasted with another page thereof. This application was
filed at a stage when the case was fixed for final arguments.
The Trial Court granted the prayer made and issued a direction to
the police for further investigation.
The Hon‘ble High Court interfered with the order of the Magistrate
permitting further investigation by the police in the case and ordered for
expeditious disposal of the trial. Amrutbhai Shambhubhai Patel V.
Sumanbhai Kantibhai Patel 2017 (5) Supreme 11

Sec. 204 – Issue of process - Sufficient ground for proceeding -

Satisfaction - Sufficient material to justify the issue of process -
Should not pass the order - Where the complainant has no personal
knowledge of the allegations.
When a person files a complaint and supports it on oath, rendering
himself liable to prosecution and imprisonment if it is false, he is entitled
to be believed unless there is some apparent reason for disbelieving him;
and he is entitled to have the persons, against whom the complaints,
brought before the court and tried. The only condition requisite for the
issue of process is that the complainant‘s deposition must show some
sufficient ground for proceeding. Unless the Magistrate is satisfied that
there is sufficient ground for proceeding with the complaint or sufficient
material to justify the issue of process, he should not pass the order of
issue of process. Where the complainant, who instituted the prosecution,
has no personal knowledge of the allegations made in the complaint, the
magistrate should satisfy himself upon proper materials that a case is
made out for the issue of process. Though under the law, a wide discretion
is given to magistrate with respect to grant or refusal of process, however,
this discretion should be exercised with proper care and caution. K.
Sitaram and another V. CFL Capital Financial Service Limited and
Another,2017) 2 SCC (Cri) 658 ; (2017) 5 SCC 725.

Sec. 235 (2) – Hearing on question of sentence – Accused sentenced to

death in murder case – Merely non-allotment of separate date for
hearing of sentence – Cannot vitiate entire case.
In a recent Judgment rendered by three learned Judges of this Court
in B.A. Umesh v. High Court of Karnataka,(2016) 9 SCALE 600 : (AIR
2017 SC (Cri) 78), the facts were more or less similar, in that no separate
date for hearing on sentence was given after recording conviction. Para 8
of that decision of this Court is quoted for ready reference:-
―8. In addition to above, it is contended on behalf of the petitioner
(Review Applicant) that since no separate date for hearing on sentence
was given in the present case by the trial court, as such for violation of
Section 235(2) Cr.P.C., the sentence of death cannot be affirmed. We have
considered the argument of Ms. Suri. It is true that the convict has a right
to be heard before sentence. There is no mandate in Section 235(2) Cr.P.C.
to fix separate date for hearing on sentence. It depends on the facts and
circumstances as to whether a separate date is required for hearing on
sentence or parties feel convenient to argue on sentence on the same day.
Had any party pressed for separate date for hearing on the sentence, or
both of them wanted to be heard on some other date, situation could have
been different. In the present case, the parties were heard on sentence by
both the courts below, and finally by this Court, as is apparent from the
Judgment under review. As such, merely for the reason that no separate
date is given for hearing on the sentence, the Review Petition cannot be
allowed.‖ This Court then relied on the principle laid down in Dagdu v.
State of Maharashtra (supra) which was followed subsequently by another
Bench of three learned Judges in Tarlok Singh v. State of Punjab[11]. In
the circumstances, merely because no separate date was given for hearing
on sentence, we cannot find the entire exercise to be flawed or vitiated.
Since we had allowed the petitioner to place the relevant material on
record in the light of the principles laid down in Dagdu v. State of
Maharashtra (supra), we will proceed to consider the material so placed on
record and weigh these factors and the aggravating circumstances as
found by the Court in the Judgment under review. Vasanta Sampat
Dupare V. State of Maharashtra, 2017 Cr.L.J. 3204
Sec. 311- IPC –Ss. 302, 201, 342 & 120 B –Re-examination of
witnesses – Scope and object- Locus standi to challenge the order
allowing the application
In Black‘s Law Dictionary, the meaning assigned to the term ‗locus
standi‘ is ‗the right to bring an action or to be heard in a given forum‘.
One of the meanings assigned to the term ‗locus standi‘ in Law Lexicon
of Sri P.Ramanatha Aiyar, is ‗a right of appearance in a Court of justice‘.
The traditional view of locus standi has been that the person who is
aggrieved or affected has the standing before the court, that is to say, he
only has a right to move the court for seeking justice. The orthodox rule of
interpretation regarding the locus standi of a person to reach the Court has
undergone a sea change with the development of constitutional law in
India and the Constitutional Courts have been adopting a liberal approach
in dealing with the cases or dislodging the claim of a litigant merely on
hyper-technical grounds. It is now well-settled that if the person is found
to be not merely a stranger to the case, he cannot be non-suited on the
ground of his not having locus standi.
In order to enable the court to find out the truth and render a just decision,
the salutary provisions of Section 311 are enacted whereunder any court
by exercising its discretionary authority at any stage of inquiry, trial or
other proceeding can summon any person as witness or examine any
person in attendance though not summoned as a witness or recall or re-
examine any person already examined who are expected to be able to
throw light upon the matter in dispute. The object of the provision as a
whole is to do justice not only from the point of view of the accused and
the prosecution but also from the point of view of an orderly society. This
power is to be exercised only for strong and valid reasons and it should be
exercised with caution and circumspection. Recall is not a matter of
course and the discretion given to the court has to be exercised judicially
to prevent failure of justice. Therefore, the reasons for exercising this
power should be spelt out in the order.
Coming to the facts of the present case, PWs 4 and 5 were examined
between 29.11.2010 and 11.3.2011. They were cross-examined at length
during the said period. During the police investigation and in their
evidence, they have supported the prosecution story. The Sessions Judge
has recorded a finding that they were not under any pressure while
recording their evidence. After a passage of 14 months, they have filed the
application for their re-examination on the ground that the statements
made by them earlier were under pressure. They have not assigned any
reasons for the delay in making application. It is obvious that they had
been won over. We do not find any reasons to allow such an application.
The Sessions Judge, therefore, was justified in rejecting the application. In
our view, High Court was not right in setting aside the said order. Ratan
Lal v. Prahlad Jat &Ors., 2017 (11) SCALE 551

Sec. 313 – Requirement of – It is not required that each and every

sentence of the prosecution evidence be re-written and read over once
again while examining the accused under Sec. 313
The Court does not find that in the present case spirit of Section 313 is
forgotten, nor it can be said that the Court has not complied with said
provision. Sub-section (b) of Section 313 requires the court to question the
accused generally on the case after the prosecution evidence is over. It
does not require to re-write hundred pages evidence in another hundred
pages to record the statement of the accused under the Section. It should
be borne in mind that entire evidence has been recorded in the presence of
the accused or his counsel, and before he enters into his defence, what is
required is that he is generally asked on the case, after the prosecution
evidence is over, to explain any circumstances in the evidence against
him. It does not require that each and every sentence of the prosecution
evidence has to be re-written and read over once again while examining
the accused under Section 313 of the Code of Criminal Procedure. Suresh
Chandra Jana V. The State of West Bengal 2017 (6) Supreme 35

Sec. 319 – Powers of Court to proceed under Sec. 319 even against
persons not arrayed as accused – Cannot be disputed
Powers of the Court to proceed under Section 319 Cr.P.C. even
against those persons who are not arrayed as accused, cannot be
disputed. This provision is meant to achieve the objective that real culprit
should not get away unpunished. A Constitution Bench of this Hon‘ble
Court in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92:
[2014]1 Supreme 132, explained the aforesaid purpose behind this
provision in the following manner:
―8. The constitutional mandate under Articles 20 and 21 of the
Constitution of India provides a protective umbrella for the smooth
administration of justice making adequate provisions to ensure a fair and
efficacious trial so that the accused does not get prejudiced after the law
has been put into motion to try him for the offence but at the same time
also gives equal protection to victims and to society at large to ensure
that the guilty does not get away from the clutches of law. For the
empowerment of the courts to ensure that the criminal administration
of justice works properly, the law was appropriately codified and
modified by the legislature under Cr.P.C. indicating as to how the
courts should proceed in order to ultimately find out the truth so that an
innocent does not get punished but at the same time, the guilty are
brought to book under the law. It is these ideals as enshrined under the
Constitution and our laws that have led to several decisions,
whereby innovating methods and progressive tools have been forged to
find out the real truth and to ensure that the guilty does not go
unpunished.
12. Section 319 CrPC springs out of the doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when guilty is acquitted) and this
doctrine must be used as a beacon light while explaining the ambit and
the spirit underlying the enactment of Sec. 319 CrPC.
13. It is the duty of the court to do justice by punishing the real culprit.
Where the investigating agency for any reason does not array one of the
real culprits as an accused, the court is not powerless in calling the said
accused to face trial. The question remains under what
circumstances and at what stage should the court exercise its power as
contemplated in Section 319 Cr.P.C.?
19. The court is the sole repository of justice and a duty is cast upon it to
uphold the rule of law and, therefore, it will be inappropriate to deny the
existence of such powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting agency. The desire
to avoid trial is so strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation or inquiry even
though he may be connected with the commission of the offence.‖
In Hardeep Singh‘s case, the Constitution Bench has also settled the
controversy on the issue as to whether the word ‗evidence‘ used in
Section 319(1) Cr.P.C. has been used in a comprehensive sense and
indicates the evidence collected during investigation or the word
‗evidence‘ is limited to the evidence recorded during trial. It is held
that it is that material, after cognizance is taken by the Court, that is
available to it while making an inquiry into or trying an offence, which
the court can utilise or take into consideration for supporting reasons to
summon any person on the basis of evidence adduced before the
Court. The word ‗evidence‘ has to be understood in its wider sense, both
at the stage of trial and even at the stage of inquiry. It means that the
power to proceed against any person after summoning him can be
exercised on the basis of any such material as brought forth before it. At
the same time, this Court cautioned that the duty and obligation of the
Court becomes more onerous to invoke such powers consciously on such
material after evidence has been led during trial. The Court also clarified
that ‗evidence‘ under Section 319 Cr.P.C. could even be examination-
in-chief and the Court is not required to wait till such evidence is tested
on cross-examination, as it is the satisfaction of the Court which can be
gathered from the reasons recorded by the Court in respect of complicity
of some other person(s) not facing trial in the offence. Brijendra Singh
V. State of Rajasthan 2017 (4) Supreme 558

Sec. 357 - Custodial Violence - Unnatural Deaths in prisons- Need to

compensate- Necessity of having counselors and support persons in
prisons
This Court has time and again emphasized the importance of Article 21 of
the Constitution and the right to a life of dignity. There must be a genuine
desire to ensure that the guarantee to a life of dignity is provided to the
extent possible even in prisons, otherwise Article 21 of the Constitution
will remain a dead letter. It must be appreciated by the State that the
common person does not violate the law for no reason at all. It is
circumstances that lead to a situation where there is a violation of law. On
many occasions, such a violation may be of a trivial nature or may be a
one- time aberration and, in such circumstances, the offender has to be
treated with some degree of humanity. At least in such cases, retribution
and deterrence cannot be an answer to the offence and the offender.
Unless the State changes this mindset and takes steps to give meaning to
life and liberty of every prisoner, prison reforms can never be effective or
long lasting.
Directions: Court is of the view that on the facts and in the circumstances
before us, the suggestions put forward by the learned Amicus and the
learned counsel appearing for the National Forum deserve acceptance and,
therefore, we issue the following directions:
1. The Secretary General of this Court will transmit a copy of this decision
to the Registrar General of every High Court within one week with a
request to the Registrar General to place it before the Chief Justice of the
High Court. We request the Chief Justice of the High Court to register a
suo motu public interest petition with a view to identifying the next of kin
of the prisoners who have admittedly died an unnatural death as revealed
by the NCRB during the period between 2012 and 2015 and even
thereafter, and award suitable compensation, unless adequate
compensation has already been awarded.
2. The Union of India through the Ministry of Home Affairs will ensure
circulation within one month and in any event by 31st October, 2017 of
(i) the Model Prison Manual,
(ii) the monograph prepared by the NHRC entitled "Suicide in Prison -
prevention strategy and implication from human rights and legal points of
view",
(iii) the communications sent by the NHRC referred to above,
(iv) the compendium of advisories issued by the Ministry of Home Affairs
to the State Governments,
(v) the Nelson Mandela Rules and
(vi) the Guidelines on Investigating Deaths in Custody issued by the
International Committee of the Red Cross to the Director General or
Inspector General of Police (as the case may be) in charge of prisons in
every State and Union Territory. All efforts should be made, as suggested
by the NHRC and others, to reduce and possibly eliminate unnatural
deaths in prisons and to document each and every death in prisons - both
natural and unnatural.
3. The Union of India through the Ministry of Home Affairs will direct the
NCRB to explain and clarify the distinction between unnatural and natural
deaths in prisons as indicated on the website of the NCRB and in its
Annual Reports and also explain the sub-categorization 'others' within the
category of unnatural deaths. The NCRB should also be required to sub-
categorize natural deaths. The sub-categorization and clarification should
be complied with by 31st October, 2017.
4. The State Governments should, in conjunction with the State Legal
Services Authority (SLSA), the National and State Police Academy and
the Bureau of Police Research and Development conduct training and
sensitization programmes for senior police officials of all prisons on their
functions, duties and responsibilities as also the rights and duties of
prisoners. A copy of this order be sent by the Registry of this Court to the
Member-Secretary of each SLSA to follow-up and ensure compliance.
5. The necessity of having counselors and support persons in prisons
cannot be over-emphasized. Their services can be utilized to counsel and
advice prisoners who might be facing some crisis situation or might have
some violent or suicidal tendencies. The State Governments are directed
to appoint counselors and support persons for counselling prisoners,
particularly first-time offenders. In this regard, the services of recognized
NGOs can be taken and encouraged.
6. While visits to prison by the family of a prisoner should be encouraged,
it would be worthwhile to consider extending the time or frequency of
meetings and also explore the possibility of using phones and video
conferencing for communications not only between a prisoner and family
members of that prisoner, but also between a prisoner and the lawyer,
whether appointed through the State Legal Services Authority or
otherwise.
7. The State Legal Services Authorities (SLSAs) should urgently conduct
a study on the lines conducted by the Bihar State Legal Services Authority
in Bihar and the Commonwealth Human Rights Initiative in Rajasthan in
respect of the overall conditions in prisons in the State and the facilities
available. The study should also include a performance audit of the
prisons, as has been done by the CAG. The SLSAs should also assess the
effect and impact of various schemes framed by NALSA relating to
prisoners. We request the Chief Justice of every High Court, in the
capacity of Patron-in-Chief of the State Legal Services Authority, to take
up this initiative and, if necessary, set up a Committee headed preferably
by the Executive Chairperson of the State Legal Services Authority to
implement the directions given above.
8. Providing medical assistance and facilities to inmates in prisons needs
no reaffirmation. The right to health is undoubtedly a human right and all
State Governments should concentrate on making this a reality for all,
including prisoners. The experiences in Karnataka, West Bengal and Delhi
to the effect that medical facilities in prisons do not meet minimum
standards of care is an indication that the human right to health is not
given adequate importance in prisons and that may also be one of the
causes of unnatural deaths in prisons. The State Governments are directed
to study the availability of medical assistance to prisoners and take
remedial steps wherever necessary.
9. The constitution of a Board of Visitors which includes non-official
visitors is of considerable importance so that eminent members of society
can participate in initiating reforms in prisons and in the rehabilitation of
prisoners. Merely changing the nomenclature of prisons to 'Correction
Homes' will not resolve the problem. Some proactive steps are required to
be taken by eminent members of society who should be included in the
Board of Visitors. The State Governments are directed to constitute an
appropriate Board of Visitors in terms of Chapter XXIX of the Model
Prison Manual indicating their duties and responsibilities. This exercise
should be completed by 30th November, 2017.
10. The suggestion given by the learned Amicus of encouraging the
establishment of 'open jails' or 'open prisons' is certainly worth
considering. It was brought to our notice that the experiment in Shimla
(Himachal Pradesh) and the semi-open prison in Delhi are extremely
successful and need to be carefully studied. Perhaps there might be
equally successful experiments carried out in other States as well and, if
so, they require to be documented, studied and emulated.
11. The Ministry of Women & Child Development of the Government of
India which is concerned with the implementation of Juvenile Justice
(Care and Protection of Children) Act, 2015 is directed to discuss with the
concerned officers of the State Governments and formulate procedures for
tabulating the number of children (if any) who suffer an unnatural death in
child care institutions where they are kept in custody either because they
are in conflict with law or because they need care and protection.
Necessary steps should be taken in this regard by 31st December, 2017.
Inhuman Conditions in 1382 Prisons 2017 (11) SCALE 493

Ss. 397(2), 482—Revision—Right to file—Interlocutory orders not

revisable due to prohibition contained in Sec. 397(2)—Cannot be
circumvented by resort to Sec. 482.
There are three categories of orders that a court can pass – final,
intermediate and interlocutory. There is no doubt that in respect of a final
order, a court can exercise its revision jurisdiction – that is in respect of a
final order of acquittal or conviction. There is equally no doubt that in
respect of an interlocutory order, the court cannot exercise its revision
jurisdiction. As far as an intermediate order is concerned, the court can
exercise its revision jurisdiction since it is not an interlocutory order.
Therefore, when Section 397(2) prohibits interference in respect of
interlocutory orders, Section 482 cannot be availed of to achieve the same
objective. In other words, since Section 397(2) prohibits interference with
interlocutory orders, it would not be permissible to resort to Section 482.
To set aside an interlocutory order prohibition in Sec. 397 will govern
Sec. 482 thereof. Girish Kumar Suneja V. C.B.I., AIR 2017 SC 3620

Sec. 427 – Direction to run sentence concurrently.

In terms of sub-section (1) of Section 427, if a person already
undergoing a sentence of imprisonment is sentenced on a subsequent
conviction to imprisonment, such subsequent term of imprisonment would
normally commence at the expiration of the imprisonment to which he
was previously sentenced. Only in appropriate cases, considering the facts
of the case, the court can make the sentence run concurrently with an
earlier sentence imposed. The investiture of such discretion, presupposes
that such discretion be exercised by the court on sound judicial principles
and not in a mechanical manner. Whether or not the discretion is to be
exercised in directing sentences to run concurrently would depend upon
the nature of the offence / offences and the facts and circumstances of
each case. Where the offences alleged in both the cases are similar in
nature the direction may be issued. Anil Kumar V. State of Punjab,
(2017) 2 SCC (Cri) 502, (2017) 5 SCC 53

Ss. 438 & 439 –Maharashtra Control of Organized Crime Act, 1999 –
Sections 3(1) (i), 3(1) (ii), 3 (2), 3(3) & 3(5) –IPC – Sections 302, 307 ,
326, 427, 153-A & 120 B – Explosive substances Act -Sections 3,4,5,
&6 – Arms Act, 1959 – Sections 3, 5, & 25- Unlawful Activities
(Prevention) Act , 1967- Sections 15, 16, 17, 18, 20 & 23- Bail
application –Factors to be considered by the Court- Successive
applications for grant to bail- Court has duty to record the fresh
grounds which persuade it to take a view different from the one taken
in the earlier applications
In our considered opinion, there are material contradictions in the charge
sheets filed by the ATS Mumbai and the NIA which are required to be
tested at the time of trial and this Court cannot pick or choose one version
over the other. Liberty of a citizen is undoubtedly important but this is to
balance with the security of the community. A balance is required to be
maintained between the personal liberty of the accused and the
investigational rights of the agency. It must result in minimum
interference with the personal liberty of the accused and the right of the
agency to investigate the case.
The law in regard to grant or refusal of bail is very well settled. The court
granting bail should exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having committed a serious
offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to
consider, among other circumstances, the following factors also before
granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant. (c) Prima facie satisfaction of
the court in support of the charge.
Before concluding, we must note that though an accused has a right to
make successive applications for grant of bail, the court entertaining such
subsequent bail applications has a duty to consider the reasons and
grounds on which the earlier bail applications were rejected. In such cases,
the court also has a duty to record the fresh grounds which persuade it to
take a view different from the one taken in the earlier applications.
It is further made clear that the grant of bail to the appellant herein
shall be no consideration for grant of bail to other accused persons in the
case and the prayer for bail by other accused persons (not before us) shall
be considered on its own merits. We also make it clear that the Special
Court shall decide the bail applications, if filed by the other accused
persons, uninfluenced by any observation made by this Court. Further,
any observations made by us in this order shall not come in the way of
deciding the trial on merits. Lt. Col. Prasad Shrikant Purohit V. State
of Maharashtra, 2017 (9) SCALE 442

Sec. 439 – Bail – Grounds for granting

The appellant was arrested on 28th September, 2016 for the offence
punishable under Ss. 366, 376(2)(g), 120 – B, 506 of the IPC and Sec.
3(2), (v) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act.
Final report has been filed against the appellant and four other
persons. The case against the appellant is almost similar to that of other
co-accused who have been enlarged on bail.
High Court rejected the appellant‘s bails application.
 In absence of any criminal antecedents against an accused who had
been in custody for six and half months and whose co – accused have
been enlarged on bail, deserves to be enlarged on bail.
After investigation, final report under Section 173 of the Cr.P.C. has
been filed against the appellant and four other persons on 19 th
October, 2016. The case against the appellant is almost similar to that of
other co-accused who have been enlarged on bail. The accused has been
in custody for the past six and half months. No criminal antecedents
have been reported against the appellant. We are of the view that it is
just and proper to enlarge the appellant on bail subject to the
following conditions:
1. The appellant shall not stay in the State of Chhattisgarh during the
pendency of the case. He shall stay in Patna during the said period.
However, he is permitted to come to the State of Chhattisgarh for
attending the aforesaid case. He shall personally appear before the trial
court on all the dates of hearing except under unavoidable circumstances.
2. Soon after release, he shall appear before the Senior
Superintendent of Police, Patna, and notify his address at Patna to the
SSP, Patna. The SSP, Patna, shall intimate him the jurisdictional Police
Station for his attendance once in a week on every Sunday between 9.00
a.m. to 5.00 p.m. Ajit Singh V. State of Chhattisgarh 2017 (4) Supreme
548

Ss. 482 & 320 - Quashing proceedings on compromise.

FIR was registered under Section 120-B read with Sections 420,
467, 468 and 471 of IPC, by the Chief Vigilance Officer of the State Bank
of Patiala against a company and two other accused. During the pendency
of the proceedings before the Court, a compromise was arrived at between
the Bank and the company under a One Time Settlement scheme of the
Bank, through which certain sums was deposited by the accused and
acknowledged by the Bank. Thereafter the Bank released the securities
and guarantees of the accused, withdrew the recovery proceeding pending
in the DRT and stated that nothing was due from the accused to the Bank.
Depending on the attendant facts, continuance of the criminal
proceedings, after a compromise has been arrived at between the
complainant and the accused, would amount to abuse of process of Court
and an exercise in futility since the trial would be prolonged and
ultimately, it may end in a decision which may be of no consequence to
any of the parties. Central Bureau of Investigation V. Sadhu Ram
Singla and others, (2017) 2 SCC (Cri) 535, (2017) 5 SCC 350.

Criminal Trial :
Appreciation of evidence
In Court‘s opinion, merely for said lapse of not producing the envelope on
the part of the investigating agency is not sufficient in the present case to
create reasonable doubt in the prosecution story. In our opinion, it is
almost impossible to come across a single case where the investigation
was completely flawless or absolutely foolproof. The function of the
criminal court is to find out the truth and it is not the correct approach to
simply pick up the minor lapses of the investigation and acquit the
accused, particularly when the ring of truth is undisturbed. Suresh
Chandra Jana V. The State of West Bengal 2017 (6) Supreme 35

Appreciation of evidence – Medical evidence – Only an opinion

lending support to direct evidence – Medical evidence contrary to
credible and trustworthy direct evidence – Not conclusive.
The evidence of a medical person is merely an opinion which lends
corroboration to the direct evidence in the case. It has been observed in
various cases of this Court that where the eye witnesses‘ account is found
credible and trustworthy, medical opinion pointing to alternative
possibilities is not accepted as conclusive. Sanjay Khanderao Wadane
V. State of Maharashtra 2017 (5) Supreme 282

Appreciation of evidence – Minor discrepancy in evidence of injured

witness – Inconsequential
In this case reading of the judgment of the High Court clearly
reveals that there are no such reasons given by the High Court on which
the evidence of injured witnesses could be disbelieved, the minor
inconsistencies pointed out by the High Court were inconsequential. This
Court has held in Brahm Swaroop and another v. State of Uttar Pradesh
2011 (6) SCC 288: [2010] 8 Crimes (SC) 267 / [2010] 7 Supreme 549.,
the statement of injured witnesses is generally considered to be very
reliable.
This Court further in the above case has laid down that minor
discrepancies in the statement of witnesses of trivial nature cannot be a
ground to reject evidence.
It is a settled legal proposition that while appreciating the evidence
of a witness, minor discrepancies on trivial matters, which do not affect
the core of the prosecution‘s case, may not prompt the court to reject the
evidence in its entirety. State of U.P. V. Ram Kumar 2017(5) Supreme
838
Circumstantial Evidence – Principles restated
In a catena of cases, this Court has laid down certain principles to be
followed in cases of circumstantial evidence. They are as under:
1. The circumstances from which an inference of guilt is sought to
be proved must be cogently or firmly established.
2. The circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused.
3. The circumstances taken cumulatively must form a chain so
complete that there is no escape from the conclusion that within
all human probability, the crime was committed by the accused
and none else.
4. The circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence. Sonu @
Amar V. State of Haryana 2017(5) Supreme 816

Evidence full of contradictions – Main witness PW1 not trustworthy –

Questionable investigation – High Court rightly acquitted the
accused.
The Court feels that the prosecution story is not trustworthy to show the
guilt of the accused. The material on record portrays huge suspicion in our
mind and the evidence adduced on record is full of contradictions and
basing on such evidence, it is not safe to fasten the liability on the
accused. It appears to us that the investigating agency ignored its
paramount duty of bringing home the guilt of the accused with probable
evidence 22 as admissible under law. Rather, the investigating agency
appears to have spent time and mind on creating two occurrences and
substantiating the same with the circumstances. The prosecution failed to
exonerate itself from the duty of proving the guilt of the accused beyond
reasonable doubt.
In Court‘s considered view, the High Court has compelling and
substantial reasons to set aside the conviction and sentence awarded by the
trial Court against the accused and no interference can be made out with
the same. S. Subbulaxmi V. Kumarasamy 2017 (5) Supreme 437

FIR – Delay in lodging – Not fatal if delay satisfactorily explained.

It is trite that mere delay in lodging the first information report is
not by itself fatal to the case of the prosecution. Nevertheless, it is a
relevant factor of which the court is obliged to take notice and examine
whether any explanation for the delay has been offered and if offered,
whether it is satisfactory or not. If no satisfactory explanation is
forthcoming an adverse inference may be drawn against the prosecution.
However, in the event, the delay is properly and satisfactorily explained;
the prosecution case cannot be thrown out merely on the ground of delay
in lodging the FIR. Obviously, the explanation has to be considered in the
light of the totality of the facts and circumstances of the case. Muttaicose
@ Subramani V. State of Tamil Nadu Rep. by Inspector of Police
2017 (5) Supreme 402

Related witnesses – Testimony of injured eye witnesses – Cannot be

disbelieved merely because they are related to deceased.
As to the testimony of the related witnesses, it is clear 2 (2001) 7 SCC 690
from the record that all the four eye witnesses PW-1, PW-2, PW-3 and
PW-4 are injured eye witnesses, and injuries on their person are proved on
the record. They cannot be simply disbelieved for the reason that they are
related to informant. No doubt, the evidence of the interested or related
witnesses is required to be scrutinized more carefully, but in the present
case, even after scrutinizing the testimony of the injured witnesses with
caution, we do not find any reason to doubt their testimony. Muttaicose
@ Subramani V. State of Tamil Nadu Rep. by Inspector of Police
2017 (5) Supreme 402

Time of death – State of Food in the stomach – Not the only factor
The presence or absence of food at the time of post-mortem in relation to
the time of death is based on various factors and circumstances such as the
type and nature of the food consumed, the time of taking the meal, the
age of the person concerned and power and capacity of the person to
digest the food. ….. Judging the time of death from the contents of the
stomach, may not always be the determinative test. It will require due
corroboration from other evidence. If the prosecution is able to prove its
case beyond reasonable doubt and cumulatively, the evidence of the
prosecution, including the time of death, is proved beyond reasonable
doubt and the same points towards the guilt of the accused, then it may
not be appropriate for the court to wholly reject the case of the prosecution
and to determine the time of death with reference to the stomach contents
of the deceased. Even in Modi‘s Jurisprudence, it has been recorded as
under:
―... The state of the contents of the stomach found at the time of medical
examination is not a safe guide for determining the time of the occurrence
because that would be a matter of speculation, in the absence of reliable
evidence on the question as to when the deceased had his last meal and
what that meal consisted of.‖
Where there is positive direct evidence about the time of occurrence, it is
not open to the court to speculate about the time of occurrence by the
presence of faecal matter in the intestine. The question of time of death of
the victim should not be decided only by taking into consideration the
state of food in the stomach. Sanjay Khanderao Wadane V. State of
Maharashtra 2017 (5) Supreme 282

Odontology report
In today‘s world, Odontology is a branch of forensic science in
which dental knowledge is applied to assist the criminal justice delivery
system. In a case where the victim's body contained various white bite
marks, Bite mark analysis play an important role in the criminal justice
system. Advanced development of technology such as laser scanning,
scanning electron microscopy or cone beam computed tomography in
forensic odontology is utilized to identify more details in bite marks and
in the individual teeth of the bite. Unlike fingerprints and DNA, bite
marks lack the specificity and durability as the human teeth may change
over time. However, bite mark evidence has other advantages in the
criminal justice system that links a specific individual to the crime or
victim. For a bite mark analysis, it must contain abundant information and
the tooth that made the mark must be quite distinctive.
Bite marks in skin are photographed in cases where the suspect is
apprehended. A thorough dental combination is administered after dental
examination of the suspect. Final comparison of the details of the original
mark with the dentation of the suspect is done by experts.
The bite marks generally include only a limited number of teeth.
The teeth and oral structure of the accused are examined by experts and,
thereafter, bite marks are compared and reports are submitted. Forensic
Odontology is a science and the most common application of Forensic
Odontology is for the purpose of identification of persons from their tooth
structure.
Forensic Odontology has established itself as an important and
indispensable science in medico-legal matters and expert evidence
through various reports which have been utilized by courts in the
administration of justice. In the case at hand, the report is wholly credible
because of matching of bite marks with the tooth structure of the accused
persons and there is no reason to view the same with any suspicion.
Learned counsel for the appellants would only contend that the whole
thing has been stage- managed. We are not impressed by the said
submission, for the evidence brought on record cogently establish the
injuries sustained by the prosecutrix and there is consistency between the
injuries and the report. We are not inclined to accept the hypothesis that
bite marks have been managed. Mukesh and another V. State (NCT of
Delhi) and others, (2017) 2 SCC (Cri) 673 ; (2017) 7 SCC 1

DNA Test
Doctor has clearly testified in his cross- examination that all the
experiments conducted by him confirmed to the guidelines and
methodology documented in the Working Procedure Manuals of the
laboratory which have been validated and recommended for use in the
laboratory. He further added that once a DNA profile is generated, its
accuracy is 100%. The trial court and the High Court have consistently
noted that the counsel for the defence did not raise any substantial ground
to challenge the DNA report during the cross-examination of doctor. In
such circumstances, there is no reason to declare the DNA report as
inaccurate, especially when it clearly links the accused persons with the
incident.
The argument that the DNA test cannot be treated to be accurate,
for there was blood transfusion as the prosecutrix required blood and
when there is mixing of blood, the DNA profiling is likely to differ, not
sustained. It is seemly to note, nothing had been put to the expert in his
cross-examination in this regard. As the authorities relating to DNA
would show, if the quality control is maintained, it is treated to be quite
accurate and as the same has been established. Mukesh and another V.
State (NCT of Delhi) and others, (2017) 2 SCC (Cri) 673 ; (2017) 7
SCC 1

Estoppel :
Substantive offence of defalcation – Conspiracy an allied
offence – Parties are different – Issue of estoppels does not arise.
It is pertinent to mention here that this Court in this very case has
negatived the contention of joint trials and amalgamation of trials in the
aforesaid decisions. When parties are different, issue of estoppels would
not arise. The substantive offence is that of defalcation. Conspiracy was
an allied offence to the substantive offence. State of Jharkhand through
S.P., C.B.I. V. Lalu Prasad @ Lalu Prasad Yadav 2017 (4) Supreme
321

Evidence Act:
Sec. 3 – Rape and murder – Question of imposing of death sentence –
Materials on recordestablishing possibility of accused being reformed
and rehabilitated – Considering aggravating circumstances namely
extreme depravity and barbaric manner in which crimes was
committed and helplessness of four years of girl – Outweigh
mitigating circumstances brought on record
The material placed on record shows that after the Judgment under
review, the petitioner has completed Bachelors Preparatory Programme
offered by the Indira Gandhi National Open University enabling him to
prepare for Bachelor level study and that he has also completed the
Gandhi Vichar Pariksha and had participated in drawing competition
organized sometime in January 2016. It is asserted that the jail record of
the petitioner is without any blemish. The matter is not contested as
regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the
decision in Bachan Singh (supra) but what is now being projected is that
there is a possibility of the accused being reformed and rehabilitated.
Though these attempts on part of the petitioner are after the Judgment
under review, we have considered the material in that behalf to see if
those circumstances warrant a different view. We have given anxious
consideration to the material on record but find that the aggravating
circumstances namely the extreme depravity and the barbaric manner in
which the crime was committed and the fact that the victim was a helpless
girl of four years clearly outweigh the mitigating circumstances now
brought on record. Having taken an overall view of the matter, in our
considered view, no case is made out to take a different view in the
matter. We, therefore, affirm the view taken in the Judgment under review
and dismiss the present Review Petitions. Vasanta Sampat Dupare V.
State of Maharashtra, 2017 Cr.L.J. 3204

Sec. 32 – Dying declaration – Significance of – Corroboration of

dying declaration is not always required for awarding conviction –
Rule requiring corroboration is merely a rule of prudence
It would not be out of place to discuss the importance of dying declaration
under Section 32 of the Indian Evidence Act. The principle underlying
Section 32 of the Indian Evidence Act is ‗Nemo moriturus praesumitur
mentire‘ i.e., man will not meet his maker with a lie in his mouth. Dying
declaration is one of the exceptions to the rule of hearsay. It is well settled
that there is no absolute rule of law ‗that the dying declaration cannot
form the sole basis of conviction unless it is corroborated‘. The rule
requiring corroboration is merely a rule of prudence [refer Paniben (Smt.)
v. State of Gujarat, (1992) 2 SCC 474; Munnu Raja and Anr. v.
Reportable State of Madhya Pradesh, (1976) 3 SCC 104; State of U.P. v.
Ram Sagar Yadav and Ors., (1985) 1 SCC 552; Ramawati Devi v. State of
Bihar, (1983) 1 SCC 211]. Moreover, if the person making the dying
declaration survives, then such statement would not be admissible under
Section 32 of the Indian Evidence Act, rather such Statements may be
admissible under Section 157 of the Indian Evidence Act Suresh
Chandra Jana V. The State of West Bengal 2017 (6) Supreme 35

Sec. 32 – Dying declaration – Not recorded because victim was

recovering – However she die after 26 days – In the circumstances,
held, victim‘s FIR should be treated as her dying declaration
As far as not recording of dying declaration is concerned, the High Court
has failed to appreciate the fact that PW-9 Sub Inspector Dibakar
Bhattacharjee has specifically stated that he did make an attempt to record
the dying declaration of the victim, but the Medical Officer of Contai Sub
Divisional Hospital advised him that there was no need to record the
dying declaration as the patient was recovering. This fact gets
corroboration from the statement of PW-6 Dr. B. Debroy who has
admitted that he opined that there was no need of dying declaration
recorded as the patient was responding well to the treatment. The said fact
is on the record in Exh. 3. In the circumstances of the case, the statement
of the victim, given by her in the First Information Report (Exh. 4) scribed
by PW-7 Joyram Jana, should have been treated as her dying declaration.
Suresh Chandra Jana V. The State of West Bengal 2017 (6) Supreme
35

Sec. 32 - Dying Declaration - more than one - Some inconsistencies

noticed - examine the nature of inconsistencies - material or not –
Consideration of - Examine in the light of the various surrounding
facts and circumstances.
It is well settled that dying declaration can form the sole basis of
conviction provided that it is free from infirmities and satisfies various
other tests. In a case where there are more than one dying declaration, if
some inconsistencies are noticed between one and the other, the court has
to examine the nature of inconsistencies as to whether they are material or
not. The court has to examine the contents of the dying declarations in the
light of the various surrounding facts and circumstances. Mukesh and
another V. State (NCT of Delhi) and others, (2017) 2 SCC (Cri) 673 ;
(2017) 7 SCC 1

Sec. 32 - Dying Declaration - Extent of admissibility - The date

overwritten - insignificant errors – inconsequential
After recording the third dying declaration, the prosecutrix has
signed the document. The date mentioned therein is overwritten.
However, in the forwarding note to the investigating officer which is
contained in continuation of the prosecutrix‘s statement, the signature and
date mentioned by the authority, who recorded the dying declaration, is
very clear and no overwriting is visible. Be it noted, the authority was
never cross-examined on the aspect of overwriting of the date. The
learned counsel has, for the first time, raised this issue before the Supreme
Court merely to substantiate his suspicion of manipulation on the part of
the prosecution. It is hold that pointing at insignificant errors is
inconsequential so far as cogent evidence produced by the prosecution
stand on a terra firma. It is beyond human prudence to discard the detailed
and well signed statements of the prosecutrix, in spite of clear date put by
herself, merely because the authority, who recorded the dying declaration,
erred at one point of time in correctly recording the date. Moreover, the
testimony of witness, who was incharge of the ICU and in whose
supervision the entire treatment and recording of statements by the
prosecutrix was done, cannot be discarded on account of meagre technical
errors. Mukesh and another Vs. State (NCT of Delhi) and others,
(2017) 2 SCC (Cri) 673 ; (2017) 7 SCC 1

Sec. 65B – CDR of mobile – Not admissible without certificate.

It is nobody‘s case that CDRs which are a form of electronic record are
not inherently admissible in evidence. The objection is that they were
marked before the Trial Court without a certificate as required by Section
65B (4). It is clear from the judgments referred to supra that an objection
relating to the mode or method of proof has to be raised at the time of
marking of the document as an exhibit and not later. The crucial test, as
affirmed by this Court, is whether the defect could have been cured at the
stage of marking the document. Applying this test to the present case, if
an objection was taken to the CDRs being marked without a certificate,
the Court could have given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that objections
regarding admissibility of documents which are per se inadmissible can be
taken even at the appellate stage. Admissibility of a document which is
inherently inadmissible is an issue which can be taken up at the appellate
stage because it is a fundamental issue. The mode or method of proof is
procedural and objections, if not taken at the trial, cannot be permitted at
the appellate stage. Sonu @ Amar V. State of Haryana 2017(5)
Supreme 816

Sec. 65B – Waiver of right to proof – Not permissible in criminal

cases.
Point which remains to be considered is whether the accused is competent
to waive his right to mode of proof? Mr. Luthra‘s submission is that such
a waiver is permissible in civil cases and not in criminal cases. He relies
upon a judgment of the Privy Council in Chainchal Singh‘s case in
support of the proposition. The Privy Council held that the accused was
not competent to waive his right. Chainchal Singh‘s case may have no
application to the case in hand at all. In that case, the issue was under
Section 33 of the Evidence Act, and was whether evidence recorded in an
earlier judicial proceeding could be read into, or not. The question was
whether the statements made by a witness in an earlier judicial proceeding
can be considered relevant for proving the truth or facts stated in a
subsequent judicial proceeding. Section 33 of the Evidence Act allows for
this inter alia where the witness is incapable of getting evidence in the
subsequent proceeding. In Chainchal Singh, the accused had not objected
to the evidence being read into in the subsequent proceeding. In this
context, the Privy Council held that in a civil case, a party can waive proof
but in a criminal case, strict proof ought to be given that the witness is
incapable of giving evidence. Sonu @ Amar V. State of Haryana
2017(5) Supreme 816

Forest Act:

Ss. 2, 38A(b) & 38A(c) – Forest Conservation Act, 1980 –

Constitution- Article 48A & 51 A- Meaning of ‗forest‘ cannot be
restricted only to reserve forests, protected forests and village forests-
Forest shall include all statutorily recognized forests, whether
designated as reserve, protected or otherwise
The Forest Conservation Act, 1980 is another Parliamentary enactment
which has been specifically enacted to provide for the conservation of the
forest and for matters connected therewith. The definition of forest cannot
be confined only to reserved forests, village forests and protected forests
as enumerated in 1927 Act.
Thus, forest shall include all statutorily recognized forest, whether
designated as reserve, protected or otherwise. The term ―Forest Land‖,
occurring in Section 2, will not only include ―forest‖ as understood in the
dictio0nary sense, but also any area recorded as forest in the Government
records irrespective of the ownership. The restrictive meaning of forest as
given by the Uttarakhand High Court in M/s Gupta Builders Cannot be
approved
The definition of forest as contained in Section 108 38A(b), as noticed
above, gives very wide definition of forest and giving restrictive meaning
of forest in view of the wide definition given by the State legislature
cannot be accepted. We, thus, are of the view that the interpretation of
forest as given by the Division Bench in its judgment dated 11.11.2011
has to be approved and the restrictive definition as given by the
Uttarakhand High Court in its judgment dated 26.6.2007 in M/s. Gupta
Builders cannot be approved. We, thus, reject the submission of learned
counsel for the petitioners to adopt a restrictive meaning of word 'forest'.
State of Uttarakhand & Ors.v. Kumaon Stone Crusher, 2017 (11)
SCALE 651

Ss. 26, 41, 55 – M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam (9 of

1969), S. 5, 15 – Confiscation of Vehicle
In view of the foregoing discussions, it is apparent that Section 15
gives independent power to the concerned authority to confiscate the
articles, as mentioned there under, even before the guilt is completely
established. This power can be exercised by the concerned officer if he is
satisfied that the said objects were utilized during the commission of a
forest offence. A protection is provided for the owners of the
vehicles/articles, if they are able to prove that they took all reasonable care
and precautions as envisaged under Sub-section (5) of Section 15 of the
Adhiniyam and the said offence was committed without their knowledge
or connivance.
Criminal prosecution is distinct from confiscation proceedings. The
two proceedings are different and parallel, each having a distinct purpose.
The object of confiscation proceeding is to enable speedy and effective
adjudication with regard to confiscation of the produce and the means
used for committing the offence while the object of the prosecution is to
punish the offender. The scheme Adhiniyam prescribes an independent
procedure for confiscation. The intention of prescribing separate
proceedings is to provide a deterrent mechanism and to stop further
misuse of the vehicle. State Of Madhya Pradesh & Ors V. Kallo Bai
2017 CrLJ 3233
General Clauses Act:
Sec. 24 – Ambit and Scope – Deals with orders issued under an Act
which has been repealed and re-enacted – Provides for continuance of
order if not inconsistent with re-enacted Act
The reliance on Sec. 24 of the General Clauses act, 1897 is also of
no consequence. This provision concerns with the orders, etc. which have
already been issued under some enactments and in the meantime those
enactments are repealed or re-enacted. In those situations, Sec. 24 of the
General Clauses act provides that such orders and regulations issued under
the old Act would remain in force so far as they are not inconsistent with
the provisions of the re-enacted Act. Such a provision again has no
relevance with the issue which we are dealing with. Union of India V.
Ms. Kumho Petrochemicals Company Ltd. 2017 (4) Supreme 738

Hindu Law
Partition Suit- Burden of proof- Legal presumption that every Hindu
family is joint in food, worship and estate and in absence of any proof
of division, such legal presumption continues to operate in the family-
Burden lies upon the member who, after admitting the existence of
jointness in that family properties, asserts his claim that some
properties out of entire lot of ancestral properties are his self-
acquired property
Here is a case where two Courts below, on appreciating the entire
evidence, have come to a conclusion that the plaintiffs failed to prove their
case in relation to both the suit properties. The concurrent findings of facts
recorded by the two 6 Courts, which do not involve any question of law
much less substantial question of law, are binding on this Court.
 It is more so when these findings are neither against the pleadings nor
against the evidence and nor contrary to any provision of law. They are
also not perverse to the extent that no such findings could ever be
recorded by any judicial person. In other words, unless the findings of
facts, though concurrent, are found to be extremely perverse so as to affect
the judicial conscious of a judge, they would be binding on the Appellate
Court.
It is a settled principle of law that the initial burden is always on the
plaintiff to prove his case by proper pleading and adequate evidence (oral
and documentary) in support thereof. The plaintiffs in this case could not
prove with any documentary evidence that the suit properties described in
Schedule ‗B‘ and ‗C‘ were their self-acquired properties and that the
partition did not take place 7 in respect of Schedule ‗D‘ properties and it
continued to remain ancestral in the hands of family members. On the
other hand, the defendants were able to prove that the partition took place
and was acted upon.
In order to prove that the suit properties described in Schedule ‗B‘ and
‗C‘ were their self-acquired properties, the plaintiffs could have adduced
the best evidence in the form of a sale-deed showing their names as
purchasers of the said properties and also could have adduced evidence of
payment of sale consideration made by them to the vendee. It was,
however, not done.
Not only that, the plaintiffs also failed to adduce any other kind of
documentary evidence to prove their self-acquisition of the Schedule ‗B‘
and ‗C‘ properties nor they were able to prove the source of its
acquisition.
It is a settled principle of Hindu law that there lies a legal
presumption that every Hindu family is 8 joint in food, worship and estate
and in the absence of any proof of division, such legal presumption
continues to operate in the family. The burden, therefore, lies upon the
member who after admitting the existence of jointness in the family
properties asserts his claim that some properties out of entire lot of
ancestral properties are his self-acquired property.
In our considered opinion, the legal presumption of the suit properties
comprising in Schedule ‗B‘ and ‗C‘ to be also the part and parcel of the
ancestral one (Schedule ‗D‘) could easily be drawn for want of any
evidence of such properties being self-acquired properties of the plaintiffs.
It was also for the reason that the plaintiffs themselves had based their
case by admitting the existence of joint family nucleolus in respect of 9
schedule ‗D‘ properties and had sought partition by demanding 4/9th
share.
In our considered opinion, it was, therefore, obligatory upon the
plaintiffs to have proved that despite existence of jointness in the family,
properties described in Schedule ‗B‘ and ‗C‘ was not part of ancestral
properties but were their self-acquired properties. As held above, the
plaintiffs failed to prove this material fact for want of any evidence.
Court has, therefore, no hesitation in upholding the concurrent findings of
the two Courts, which in our opinion, are based on proper appreciation of
oral evidence. Adiveppa & Ors. V. Bhimappa & Anr. 2017 (11)
SCALE 156

Hindu Marriage Act

Sec. 12(1) (C) - Child marriage – Voidable at the option of the minor
spouse at the time of marriage – Instantly wife was minor at the time
of marriage and Husband seeking divorce was major at the time of
marriage – Decree of divorce – Validity of
It is no more res integra that child marriages are voidable at the option of
the minor spouse at the time of marriage. Therefore it is clear from the
reading of the said Section that only minor spouse has a right to seek
annulment of marriage. In this case, admittedly it is respondent-
husband who sought annulment of marriage and he was major at the time
of marriage.
We are, therefore, unable to agree with the findings and discussion
made by the High Court. The High Court has sidetracked and diluted
the main issue involved in the appeal i.e. annulment of marriage sought
by the respondent-husband on the ground of fraud and coercion and
went on giving findings on the aspect of age of the wife. In fact age of
the wife is one of the grounds raised by the husband. Even before us
also the thrust of the argument is on that.
Hence we feel that in order to meet the ends of justice this matter should
be remanded back to the High Court for fresh consideration in accordance
with law.
Accordingly the matter is remanded to the High Court for fresh
consideration in the proper perception of law uninfluenced by any of the
observations made by us. Bhagwati @ Reena V. Anil Chaubey 2017 (5)
Supreme 108

Section 13(B) (2)- Divorce by mutual consent- Waiver of waiting

period of six months for the second motion- discretion of the Court-
Period mentioned in Section 13B (2) is not mandatory but directory –
Waiver application can be filed one week after the first motion giving
reasons for the prayer for waiver
The object of the provision is to enable the parties to dissolve a marriage
by consent if the marriage has irretrievably broken down and to enable
them to rehabilitate them as per available options. The amendment was
inspired by the thought that forcible perpetuation of status of matrimony
between unwilling partners did not serve any purpose.
The object of the cooling off the period was to safeguard against a hurried
decision if there was otherwise possibility of differences being reconciled.
The object was not to perpetuate a purposeless marriage or to prolong the
agony of the parties when there was no chance of reconciliation. Though
every effort has to be made to save a marriage, if there are no chances of
reunion and there are chances of fresh rehabilitation, the Court should not
be powerless in enabling the parties to have a better option.
In determining the question whether provision is mandatory or directory,
language alone is not always decisive. The Court has to have the regard to
the context, the subject matter and the object of the provision.
Applying the above to the present situation, we are of the view that where
the Court dealing with a matter is satisfied that a case is made out to
waive the statutory period under Section 13B(2), it can do so after
considering the following :
i) the statutory period of six months specified in Section 13B(2),
in addition to the statutory period of one year under Section
13B(1) of separation of parties is already over before the first
motion itself;
ii) all efforts for mediation/conciliation including efforts in terms
of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section
9 of the Family Courts Act to reunite the parties have failed and
there is no likelihood of success in that direction by any further
efforts;
 iii) the parties have genuinely settled their differences including
alimony, custody of child or any other pending issues between
the parties;
iv) the waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving
reasons for the prayer for waiver.
If the above conditions are satisfied, the waiver of the waiting period for
the second motion will be in the discretion of the concerned Court.
Since we are of the view that the period mentioned in Section 13B(2) is
not mandatory but directory, it will be open to the Court to exercise its
discretion in the facts and circumstances of each case where there is no
possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation. Amardeep Singh V. Harveen Kaur, 2017 (11)
SCALE 258

Hindu Succession Act

Ss. 4 & 8- Hindu Widow‘s Re- Marriage Act, Section 2- right of
mother to inherit estate of her son after his death –Hindu Widow‘s
Re-Marriage Act shall not control the succession as ordained by
Section 8 of the 1856 Act- Whether the Hindu Widow‘s Remarriage
Act disentitles respondent ‗GK‘ to inherit estate of ‗P‘ –Held No
The mother being class I heir under section 8 and there being no other
class I heir available to succeed mother, she naturally succeed the estate of
Pal Singh by virtue of Section 8 read with the
schedule, Class I. Whether provision of Section 2 of the 18 56 Act
disentitles the defendant Non. 1 to succeed the estate of Pal Singh, is the
submission forcefully put up by learned counsel for the appellant. It is
submitted that on remarriage, the widow ceases to have any right of
maintenance or inheritance to her husband of his lineal successors it is
submitted that Pal Singh being lineal successor of husband of defendant
No. 1 she is also disentitled to succeed the estate of Pal Singh.
In the present case, the succession has opened in the year 1972 when Pal
Singh died. The question which had cropped up in the present case
regarding succession of estate of Pal Singh and succession of Pal Singh‘s
estate shall be governed by Section 8 of the Hindu Succession Act, 1956.
By Section 8, the mother i.e. defendant No. 1 being described in Class I of
the Schedule shall inherit the property excluding other heirs. Even after
remarriage of defendant No. 1, the defendant No. 1 shall continue to be
the mother of Pal Singh, who was born to her from her first husband
Narain Singh. Succession under Section 8 of the estate of Pal Singh by
defendant No. 1 shall not be controlled or prohibited by Section 2 of the
Hindu Widow‘s Re Marriage Act, 1856. It is true that all rights in her
husband‘s property or Property of lineal successors of her husband were
lost by a widow on her remarriage. But Section 2 shall not govern or
regulate any future succession to which she may be entitled under law.
The Hindu Widow‘s Re-Marriage Act, 1856 has been subsequently
repealed by the Hindu Widow‘s Re-Marriage (Repeal) Act. 1983. Even
though, in the year 1972, the 1856 Act was in force but as noted above,
the said provision shall not control the succession as ordained by Section
8 of the 1956 Act.
Coming to Section 4 of the 1956 Act, where an overrding effect has been
given to the 1956 act to any other law in force immediately before the
commencement of the 1956 Act in so far as it is inconsistent with any of
the provisions contained in the 1956 Act. Even for the arguments sake, it
is accepted that Section 2 of the 1856 Act have any cascading effect on
the right of widow, the same shall be treated to have overridden by virtue
of Section 8 read with Schedule to the 1956 Act
Court thus is of the view that Section 2 of the 1956 Act in no manner
affect the right of defendant No. 1 to succeed the estate of her son Pal
Singh and after the death of Pal Singh, she was rightly held to succeed to
properties of Pal Singh. Atma Singh v.Gurmej Kaur (D) & Ors. 2017
(11) SCALE 567

Indian Contract Act:

Award of damages – Damages cannot be awarded for loss of
anticipated/assumed profits.
The appellate court examined the copious oral and documentary
evidence in detail, and has rendered reasoned findings. It was held that
Exhibit ‗F1‘ and Exhibit ‗W1‘ had not been proved in accordance with
law, and therefore, were inadmissible in evidence. Serious doubt was
expressed, for reasons discussed, if the latter had even ever been tendered
in evidence, holding that the two documents could not form the basis for
awarding damages for loss of anticipated profits. The primary document,
Exhibit ‗F1‘ not having been proved, any assumptions in Exhibit ‗C‘ had
been prepared in association with Dr. R.K. Baisya. No adverse inference
could be drawn against the respondent and it was for the appellant to have
summoned Dr. Baisya as a witness to prove its case, since he had since
resigned and left the Company. Kanchan Udyog Ltd. V. United Spirits
Ltd. 2017 (5) Supreme 165

Indian Penal Code:

Sec. 120-B – In this case, appellant abusing his power to gain huge
pecuniary benefit – Criminal conspiracy
So far as the role of co-accused appellant Neera Yadav is concerned, at
the relevant time both the appellants were public servants. Neera Yadav
played a specific role facilitating the appellant Rajiv Kumar to obtain plot
No.27 in Sector-14A at less premium. Being CCEO of NOIDA, appellant
Neera Yadav signed various notes put up before her like Ex. Ka-34
(15.10.1994), conversion of ―guest house‖ to ―residential‖ and allotment
of plot No.27 in Sector-14A. On perusal of the exhibits, it is clear that
appellant Neera Yadav was involved in all the stages of conversion of the
―guest house‖ to ―residential‖, in violation of rules allotment of plot
No.27 to appellant and also allotment of additional area to the appellant
Rajiv Kumar. Often conspiracy is hatched in secrecy and for proving this
offence substantial direct evidence may not be possible to be obtained.
The CA NO.251 OF 2017 WITH CA NO.252 OF 2017 evidence and
materials on record amply show that there was a prior concert of minds of
the appellants in conversion of the ―guest house‖ into ―residential‖ and
allotting the same to appellant by flouting the rules and the circular.
On appreciation of evidence and materials on record, both the trial court
and the High Court recorded concurrent findings that the appellants acted
in clear abuse of position, plot No.27 in the developed Sector-14A was
converted from guest house to ‗residential‘ and in violation of the norms
and circulars, the same was allotted to the appellant to gain pecuniary
advantage to him (Rajiv Kumar). The concurrent findings recorded by the
courts below are well balanced and we do not find any reason warranting
interference. Rajiv Kumar V. State of U.P., 2017 (6) Supreme 1

Sec. 302 – Appellant chasing deceased and assaulting twice on his

head without any provocation – The culpable homicide amounts to
murder.
As to the motive or intention on the part of the A-2 to commit murder of
the deceased what is important is that the appellant (A-2) who was armed
with the deadly weapon chased the deceased and assaulted twice on his
head. All these facts taken together clearly show that the culpable
homicide in the present case amounts to murder. Needless to say that there
is nothing on the record to show that the deceased gave any provocation to
the appellant (A-2) to make him to assault the deceased.Muttaicose @
Subramani V. State of Tamil Nadu Rep. by Inspector of Police 2017
(5) Supreme 402

Ss. 302 and 304 Part II – Applicability of – None of the injuries

sufficient to cause death – No intention to murder – Conviction
modified to Sec. 304 Part II.
The Hon‘ble Court has gone through the postmortem report and
there is no doubt that there were number of injuries on the body of the
deceased. None of the injuries by itself was sufficient for causing death.
The cumulative effect of the injuries is that the deceased died. The issue
that arises is whether the accused had the intention of causing death of the
deceased. We cannot ignore the fact that the deceased woke up in the
morning and narrated the incident to her sister P.W. 3, and she survived
till 5.00 p.m. in the evening. The postmortem report also shows that she
died within a couple of hours after partaking a heavy meal. In this view of
the matter, it is difficult to impute the intention to kill to the appellant.
Therefore, we convert the conviction of the accused from one under
Section 302 to Section 304 Part – II. As the appellant has been behind
bars for sixteen years, in our view, this is sufficient punishment for his
crime and therefore, we reduce the sentence after altering the sentence as
aforesaid to the period of incarceration already undergone by the
appellant – accused. He shall be released forthwith unless wanted in any
other case. Madanayya V. State of Maharashtra 2017 (4) Supreme 671

Ss. 302, 376(2)(f) – Cr.P.C., S. 235(2) – Evidence Act , S. 3 – Rape and

murder – Question of imposing of death sentence – Materials on
record establishing possibility of accused being reformed and
rehabilitated – Mitigating factors should be considered.
The material placed on record shows that after the Judgment under
review, the petitioner has completed Bachelors Preparatory Programme
offered by the Indira Gandhi National Open University enabling him to
prepare for Bachelor level study and that he has also completed the
Gandhi Vichar Pariksha and had participated in drawing competition
organized sometime in January 2016. It is asserted that the jail record of
the petitioner is without any blemish. The matter is not contested as
regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the
decision in Bachan Singh (supra) but what is now being projected is that
there is a possibility of the accused being reformed and rehabilitated.
Though these attempts on part of the petitioner are after the Judgment
under review, we have considered the material in that behalf to see if
those circumstances warrant a different view. We have given anxious
consideration to the material on record but find that the aggravating
circumstances namely the extreme depravity and the barbaric manner in
which the crime was committed and the fact that the victim was a helpless
girl of four years clearly outweigh the mitigating circumstances now
brought on record. Having taken an overall view of the matter, in our
considered view, no case is made out to take a different view in the
matter. We, therefore, affirm the view taken in the Judgment under review
and dismiss the present Review Petitions. Vasanta Sampat Dupare V.
State of Maharashtra, 2017 Cr.L.J. 3204

Interest Act:
Sec. 3(1)(b) – Interest on damages – Power to grant - Arbitrator
empowered to grant interest on damages from the date mentioned in
this regard in a written notice claiming such interest.
Learned counsel appearing on behalf of the Board, however, submitted
that a claim for damages gets quantified upon an adjudication by the
arbitrator. Hence, it was submitted that no interest could be awarded prior
to the date of the award. Even this aspect of the matter is, in our view, no
longer res integra. The arbitrator has power to grant interest on damages
under Section 3(1)(b) of the Interest Act, 1978, from the date mentioned
in this regard in a written notice claiming such interest. The position
which prevailed prior to the Interest Act, 1978 (to the effect that interest
on damages would be payable only after ascertainment of damages) has
undergone a change after the enactment of the Act. Interest on damages
could be claimed from the date of the written notice as contemplated in
the law. This aspect of the matter has been set at rest in a decision of this
Court in State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd.
(2009) 12 SCC 1.Assam State Electricity Board V. Buildworth Pvt.
Ltd. 2017 (5) Supreme 405

Interpretation of Statute:
Rule of - Broad and purposeful interpretation to be given to
provision of S. 2(14) of JJ Act
Definition of a ―child in need of care and protection‖ given in
Section 2(14) of the JJ Act should be given a broad and purposeful
interpretation. It ought not to be treated as exhaustive but illustrative and
furthering requirements of social justice. Re : Exploitation of Children
in Orphanages in the State of Tamil Nadu V. Union of India, AIR
2017 SC 2546

Cardinal principle - Construction of

It is a cardinal principle of construction that every statute is prima
facie prospective unless it is expressly or by necessary implication made
to have a retrospective operation. However, the rule in general is
applicable where the object of the statute is to affect vested rights or to
impose new burdens or to impair existing obligations. Equally the rule
against retrospective construction is not applicable to a statute merely
because a part of the requisites for its action is drawn from a time
antecedent to its passing. Chairman and Managing Director, FCI V.
Jagdish Balaram Bahira, AIR 2017 SC 3271

External aid—Use of
External aids of interpretation are to be used only when language of
legislation is ambiguous and admits of two or more meanings. When
language clear or ambiguity can be resolved under more common rules of
statutory interpretation, court would be reluctant to look at external aids of
statutory interpretation. Rakesh Kumar Paul V. State of Assam, AIR
2017 SC 3948

Rule of interpretation regarding general law and special law –

Special law for Delhi – Cannot prevail over any other general law on
restriction on transfer after initiation of acquisition proceedings.
 Under the statutory scheme, the restriction on transfer is only after
publication of Notification under Section 6 of the 1894 Act. Being a
special law as far as Delhi is concerned, this will, in no case, prevail over
any other general law on restriction on transfer after initiation of
acquisition proceedings. Delhi Development Authority V. Islamuddin
2017 (5) Supreme 89

Interpretation of Constitution – Principle of

The principle of constitutional interpretation that ―each general
word should be held to extend to all ancillary and subsidiary matters
which can fairly and reasonably be said to be comprehended in it‖ is
applicable to provisions of the Constitution which are sources of power,
cannot be applied to entries in the three Lists which are only indicative of
the fields of legislation. Bimolangshu Roy (Dead through LRs V. State
of Assam 2017(6) Supreme 221

Plain meaning — Words used by legislature should be given their

natural meaning
While interpreting any statutory provision, it has always been
accepted as a golden rule of interpretation that words used by legislature
should be given their natural meaning. Normally, courts should be hesitant
to add words or subtract words from the statutory provision. An effort
should always be made to read legislative provision in such a way that
there is no wastage of words and any construction which makes some
words of statute redundant should be avoided. No doubt, if natural
meaning of words leads to an interpretation which is contrary to objects of
Act or makes provision unworkable or highly unreasonable and arbitrary,
then Courts either add words or subtract words or read down the statute,
but this should only be done when there is an ambiguity in language used.
Rakesh Kumar Paul V. State of Assam, AIR 2017 SC 3948

Taxing statute – Rule of interpretation – When goods fall within the

domain of uncertainty, it would be difficult to lean in favour of the
Revenue.
The Court dealing with a taxing statute and when the court find that
goods falls within the domain of uncertainty, it would be difficult to lean
in favour of the revenue.
Tax laws are clearly in derogation of personal rights and property
interests and are, therefore, subject to strict construction, and any
ambiguity must be resolved against imposition of the tax. In Billings V.
United States [58 Rs. Ed 596 : 232 US 261 at p. 265 : 34 S Ct 421
(1914)], the Supreme Court clearly acknowledged this basic and
longstanding rule of statutory construction: (L Ed p. 598)
―Tax statutes …. Should be strictly construed; and if any ambiguity
be found to exist, it must be resolved in favour of the citizen.‖
Union of India V. M/s. Margadarshi Chit Funds (P) Ltd. 2017 (5)
Supreme 417

Juvenile Justice (Care & Protection of Children) Act

S. 2(14) - ―Child in need of care and protection‖ - Definition in S. 2

(14) – Not exhaustive, but illustrative and furthering requirement of
social justice – Must be given a broad interpretation.
The definition of a child in need of care and protection given in
Section 2(14) of the JJ Act should be given a broad and purposeful
interpretation. It ought not to be treated as exhaustive but illustrative and
furthering the requirements of social justice. This understanding would
also be in consonance with Article 40 of the CRC which stipulates that the
―State parties shall recognize rights of every child accused of an offence
and treatment of such a child shall be in manner consistent with promotion
of the child's dignity and worth‖.
Learned Amicus drew out attention to devisions rendered by some
High Courts which have taken a broad based approach to the meaning of a
child in need of care and protection and some other High Courts that have
adopted a comparatively narrow interpretation. These decisions were
rendered in the context of the Juvenile Justice (Care and Protection) Act,
2000 and would not really be applicable insofar as the JJ Act is concerned.
However, this does not detract from her submission that a child in need of
care and protection must be given a wider meaning and in addition to
some children in conflict with law as discussed above, it must also
include victims of sexual abuse or sexual assault or sexual harassment
under the POCSO Act as also victims of child trafficking. Such children
must also be given protection under the provisions of the JJ Act being
victims of crime under the POCSO Act and the Immoral Trafficking
(Prevention) Act, 1956. Re : Exploitation of Children in Orphanage in
the State of Tamil Naddu V. U.O.I., 2017 Cr.L.J. 3217)

Land Acquisition Act:

Ss. 4, 23 & 54- Compensation claims- Merely on ground of delay,
benefit of enhanced compensation cannot be denied to claimants/
agriculturists
The term "sufficient cause" is to receive liberal construction so as to
advance substantial justice, when no negligence, inaction or want of bona
fide is attributable to the appellants, the Court should adopt a justice-
oriented approach in condoning the delay.
With the acquisition of lands, the lifeline of the agriculturist is lost. There
may be omission on the part of the claimants to adopt extra vigilance; but
same need not be used as a ground to depict them with negligence or want
of bona fide. In case of acquisition of lands of agriculturists, the courts
ought to adopt a pragmatic approach to award just and reasonable
compensation and not pedantic in their approach.
When the concerned court has exercised its discretion either condoning or
declining to condone the delay, normally the superior court will not
interfere in exercise of such discretion. The true guide is whether the
litigant has acted with due diligence. Since the appellants/claimants are
the agriculturists whose lands were acquired and when similar situated
agriculturists were given a higher rate of compensation, there is no reason
to decline the same to the appellants. Merely on the ground of delay such
benefit cannot be denied to the appellants. The interest of justice would be
served by declining the interest on the enhanced compensation and also on
the solatium and other statutory benefits for the period of delay. K.
Subbarayudu and others V. The Special Deputy Collector (Land
Acquisition) 2017 (8) SCALE 61

Ss. 18 and 30 – Scope of Sec. 30 – Narrower than that of sec. 18 –

Power under sec. 30 is discretionary.
A perusal of Section 18 of the Act makes it clear that reference
can be sought to a civil court with respect (i) the measurement of the
land, (ii) adequacy and quantum of compensation, (iii) persons to
whom it is payable and (iv) the apportionment thereof amongst the
persons interested. The application under Section 18 is required to be
filed within stipulated time whereas no limitation is prescribed under
Section 30 of the Act. It is discretionary upon the court to refer a
dispute under Section 30 of the Act. The same is confined to the
apportionment of the compensation or as to a person to whom the same is
payable. The scope of Section 30 of the Act is narrow as compared to
Section 18 as laid down in G.H. Grant v. State of Bihar AIR 1966 SC 237
and in Sharda Devi v. State of Bihar (2003) 3 SCC 128. Ramesh
Chand V. M/s Ranmayt Developers Pvt. Ltd. 2017 (4) Supreme 588

Sec. 30 – Claim for refund of earnest money – Civil suits already filed
– Same cannot be agitated before reference Court under Sec. 30
Once remedy in the form of civil suits has been resorted to, in our
considered opinion, it was not at all proper exercise of power to invoke
provisions under Section 30 of the act with regard to appointment of the
compensation by directing refund of earnest money. It is not mandatory to
make a reference to the civil court under Sec. 30 and adjudication of
dispute in an appropriate case can be ordered by way of the civil suit. In
the instant case civil suits had already been preferred by respondent no. 1.
It was not appropriate to decide same dispute under Sec. 30. Ramesh
Chand V. M/s Ranmayt developers Pvt. Ltd. 2017 (4) Supreme 588

Sec. 54 r/w Sec. 5, Limitation Act, 1963 – Appellant filing appeal after
a delay of 3671 days – High Court in a similar case condoning delay of
3386 days on the condition that interest will not be payable for period
of delay – Held, such benefit cannot be denied to the appellants.
When the concerned court has exercised its discretion either
condoning or declining to condone the delay, normally the superior court
will not interfere in exercise of such discretion. The true guide is whether
the litigant has acted with due diligence. Since the appellants/ claimants
are the agriculturists whose lands were acquired and when similar situated
agriculturists were given a higher rate of compensation, there is no reason
to decline the same to the appellants. Merely on the ground of delay such
benefit cannot be denied to the appellants. The interest of justice would be
ser4ved by declining the interest on the enhanced compensation and also
on the solatium and other statutory benefits for the period of delay. K.
Subbarayudu V. Special Deputy Collector (Land Acquisition) 2017
(5) Supreme 572

Limitation Act:
Art. 65, Explanation (b) – Applicable only in the case where property
is not claimed through the female but independently of woman who
has died and was absolute owner.
The suit preferred by the plaintiffs in the year 1979 beyond a
period of 12 years, was hopelessly barred by limitation. We are unable to
accept the submission as Explanation (b) to Article 65 of the Act is
applicable only in the case where property is not claimed through the
female but independently of woman who has died. The word ―entitled‖
contained in Explanation (b) to Article 65 clearly means a person is
entitled independently of the right of the Hindu or Mohammedan female.
In case she is absolute owner Article 65 (b) will have no application. In
other words, it is necessary to trace the right to someone else and not to
the Hindu or Mohammedan female, as the case may be. In the instant
case, Shakuntalabai, daughter of Shankara Rao became absolute owner of
the property on 6.2.1958 and on her death on 1.10.1962, the right accrued
to Anandibai on the basis of inheritance made from Shakuntalabai who
was the owner of the ½ share in question. When the property is claimed
from a woman, Hindu or Mohammedan, who was the full owner, it could
not be said that Anandibai or the plaintiffs became entitled to the property
independently of the rights of female i.e. Shakuntalabai. Thus the suit
filed by such heir of female for separate possession / partition would not
be governed by Explanation (b) to Article 65. In such a case limitation
would not commence as per Explanation (b) to Article 65 on death of
female Hindu. However, the starting point of limitation for computation of
12 years would be the date of start of adverse possession otherwise.
Bapusaheb Chimasaheb Naik Nimbalkar (Dead) through LRs V.
Mahesh Vijaysinha Rajebhosale, 2017 (4) Supreme 593

Arts. 82 & 113- Fatal Accidents Act, 1855- Section 1A- Constitution –
Article 142- Suit for compensation –Limitation period of two years
for filing a suit or claim under the Act – Consideration of
Part VII of the Schedule deals with the "suits relating to tort".
Therefore, when a suit for compensation is filed under the Fatal Accidents
Act, 1855, the same has to be filed within the period of two years as
prescribed under Article 82 of the Limitation Act, 1963. In the instant
case, the action for damages is brought under Section 1A of the Fatal
Accidents Act, 1855.
However on a query as to whether there is a scheme under the first
respondent for providing compensation to the victims, the learned
standing Counsel has informed us that there is a scheme under the Rules
now applicable wherein the legal heirs of the deceased person are entitled
to a one-time compensation of Rs.5 lakhs. The accident is of the year
2008. Therefore, we are of the view that it is a fit case to invoke our
jurisdiction under Article 142 of the Constitution of India and grant Rs. 7
lakhs as compensation. The first respondent shall pay this amount to the
first appellant within two months from today otherwise the appellants will
be entitled to interest of 12 per cent per annum from the date of the
accident and the officers responsible for the delay shall be personally
liable for the same. Damini and Another v. Managing Director,
Jodhpur Vidyut Vitran Nigam Limited and another, 2017 (11)
SCALE 450

Mohammedan Law:
Divorce – Triple Talaq –Constitutionality and legal sanctity – This
form of Talaq is manifestly arbitrary in the sense that marital tie can
be broken capriciously and whimsically by a Muslim man without
any attempt at reconciliation so as to save it – This form of Talaq
must be held to be violative of fundamental right contained under
Art. 14 of Constitution of India.
Advocate, appeared on behalf of respondent no.11 (in Writ Petition (C)
No.118 of 2016) - Dr. Noorjehan Safia Niaz, who was impleaded as such,
by an order dated 29.6.2016. It was submitted by learned counsel, that
‗talaq-e-biddat‘ was a mode of divorce that operated instantaneously. It
was contended, that the practice of ‗talaq-e- biddat‘, was absolutely
invalid even in terms of Muslim ‗personal law‘ – ‗Shariat‘. It was
submitted, that it was not required of this Court to strike down the practice
of ‗talaq-e-biddat‘, it was submitted, that it would suffice if this Court
merely upholds the order passed by the Delhi High Court in the Masroor
Ahmed case, by giving a meaningful interpretation to ‗talaq-e-biddat‘,
which would be in consonance with the verses of the Quran and the
relevant ‗hadiths‘.
It was also asserted by learned counsel, that Islam from its very inception
recognized rights of women, which were not available to women of other
communities. It was pointed out, that the right of divorce was conferred
on Muslim women, far before this right was conferred on women
belonging to other communities. It was asserted, that even in the 7th
century, Islam granted women the right of divorce and remarriage. The
aforesaid legal right, according to learned counsel, was recognized by the
British, when it promulgated the Shariat Act in 1937. It was submitted,
that through the above legislation all customs and usages contrary to the
Muslim ‗personal law‘ – ‗Shariat‘, were unequivocally annulled. It was
therefore contended, that while evaluating the validity of ‗talaq-e-biddat‘,
this Court should be conscious of the fact, that the Muslim ‗personal law‘
– ‗Shariat‘, was a forward looking code of conduct, regulating various
features in the lives of those who professed the Muslim religion. Shayara
Bano V. Union of India 2017 (5) Supreme 577

Motor Vehicles Act

Motor Accident Claims - Gratuitous Passengers – Pay and recover.
Referring the several decisions rendered by three Judge Bench and two
Judge Bench in National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC
1: 2004 SCC (Cri) 370, National Insurance Co. Ltd. v. Challa Upendra
Rao, (2004) 8 SCC 517: 2005 SCC(Cri) 357. National Insurance Co. Ltd.
v. Kaushalaya Devi, (2008) 8 SCC 246: (2008) 3 SCC (Cri) 467, National
Insurance Co. v. Roshan Lal, (2017) 4 SCC 803: (2017) 2 SCC (Cri) 499
and National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785: (2009)
3 SCC (Civ) 568: (2009) 3 SCC (Cri) 943, keeping in view the benevolent
object of the Act and other relevant factors arising in the case, it is held
that the directions against the insurance company to pay the awarded sum
to the claimants and them to recover the said sum from the insured in the
same proceedings by applying the principle of ―pay and recover‖, is valid
law. The court further said that the argument that the reference made to
the larger Bench, does not survive any more since the petition has been
disposed of by keeping the issue undecided. Manuara Khatun and
others V. Rajesh Kumar Singh and others, (2017) 2 SCC (Cri) 492,
(2017) 4 SCC 796 ; National Insurance Company Vs. Roshan Lal and
another, (2017) 2 SCC (Cri) 499, (2017) 4 SCC 803.

Sec. 166 – Multiplier method – Scope of – In awarding compensation

on death - Multiplier method is logically sound and legally well
established – It is based on the doctrine of equity, equality and
necessity – A departure therefrom permissible only in rare and
exceptional cases.
We may observe at the outset that it is now a settled principle,
repeatedly stated and restated time and again by this Court, that in
awarding compensation the multiplier method is logically sound and
legally well established. This method, kn own as ‗principle of multiplier‘,
has been involved to quantify the loss of income as a result of death of
permanent disability suffered in an accident. Sandeep Khanuja V. Atul
Dande 2017 (5) Supreme 29

Motor Accident Claims – Income proof – Mode of determination

No doubt, there was no evidence available with regard to the
income of the injured but there is no dispute on the fact that he was a
painter by profession. The accident happened in the year 2013 when he
was living in Bangalore, Karnataka. For a casual worker, who goes from
house to house and place to place doing his painting work it is difficult to
get any evidence, since there is no employer. He does his daily work,
sometimes piece-rated work as well. That is why he made a moderate self-
estimation of his income of Rs. 15,000 to Rs. 16,500. In the absence of
any serious dispute on the part of the respondent on the avocation and
income, the court was of the view that the Tribunal should have accepted
the evidence of the appellant. Shivakumar M. V. Managing Director,
Bengaluru Metropolitan Transport Corporation, (2017) 2 SCC (Cri)
505, (2017) 5 SCC 79

Section 166 – Accident Claim - Assessment of

The deceased was aged 24 years at the time of accident. As noticed above,
the deceased was employed in a company. It is clear from the materials on
record that the deceased had a stable job. Therefore, we are of the view
that the higher estimate of monthly income could be made. This Court
in Sarla Verma (Smt.) & Ors.v. Delhi Transport Corporation & Anr.
reported in (2009) 6 SCC 121, has held that 50% of the actual salary
income of the deceased has to be added towards future prospects where
the deceased was below 40 years. Therefore, the gross income of the
deceased comes to Rs.15,000/- per month (Rs.10,000/- + Rs.5000/-)
before deducting the personal living expenses.
Since the age of the deceased was 24 years, the High Court should have
given the benefit of multiplier of 18.
Since the deceased was a bachelor, 50 per cent of the income should be
deducted towards his personal expenses. Thus, the compensation payable
towards loss of dependency comes to Rs.16,20,000/- (Rs.15000 ÷ 2 x 12 x
18). The High Court has awarded a compensation of Rs.5,28,000/-
towards loss of dependency, which has to be deducted from the said
amount. The balance of compensation payable to the claimants is
Rs.10,92,000/- towards loss of dependency.
The deceased was the only son of the appellants. The High Court has
awarded a sum of Rs.20,000/- towards loss of love and affection. We are
of the view that it is just and proper to award a sum of Rs.50,000/- under
this head. The balance of compensation payable towards loss of love and
affection is Rs.30,000/-. Thus, the additional compensation payable to the
claimants comes to Rs.11,22,000/- (Rupees 10,92,000 + 30,000). Joseph
Philip C.J. & Anr. v. Judies & Ors. 2017 (11) SCALE 161

Sec. 166- Raising of the claims before the Motor Accident Claims
Tribunal – In the absence of limitation provided in the Statute- Held,
a claim raised before the MACT, can be considered to be genuine, so
long as it is a live and surviving claim- The claim in question raised
after 28 years of the Accident held to be stale and considered to be a
dead claim
The daughter of the respondents died in a motor accident on 02.02.1977.
A claim petition was filed, under Section 166 of the Motor Vehicles Act,
1988 (hereinafter referred to as 'the 1988 Act'), seeking compensation on
account of the motor accident, wherein the respondents' daughter had
died, on 23.02.2005 i.e., after a period of more than 28 years. The Motor
Accident Claims Tribunal entertained the above claim.
A prayer made to reject the claim petition, for the reason, that the said
claim had been raised 28 years after the accident in question, was rejected.
It is in these circumstances, that M/s Purohit and Company (the petitioner
herein) approached the High Court, wherein, the matter was re-
adjudicated.
Again, a prayer was made at the hands of the petitioner, that the claim had
been made belatedly, and was not a surviving claim. The High Court,
upheld the justiciability of the claim petition, on the short ground, that no
period of limitation had been provided for raising a claim for
compensation, under the Motor Vehicles Act, 1988.
Court are of the considered view, that a claim raised before the Motor
Accident Claims Tribunal, can be considered to be genuine, so long as it
is a live and surviving claim. Court satisfied in accepting the declared
position of law, expressed in the judgments relied upon by the learned
counsel for the appellant. It is not as if, it can be open to all and sundry, to
approach a Motor Accident Claims Tribunal, to raise a claim for
compensation, at any juncture, after the accident had taken place. The
individual concerned, must approach the Tribunal within a reasonable
time.
The question of reasonability would naturally depend on the facts and
circumstances of each case. court however, satisfied, that a delay of 28
years, even without reference to any other fact, cannot be considered as a
prima facie reasonable period, for approaching the Motor Accident Claims
Tribunal. The only justification indicated by the respondents, for initiating
proceedings after a lapse of 28 years, emerges from paragraph 4,
contained in the application for condonation of delay, filed by the
claimants, before the Tribunal. Paragraph 4 aforementioned is extracted
hereunder:
"4. That the Petitioners are poor person and they have no knowledge about
the Law. Also the Respondent has not pay the single pie towards any
compensation."
Having given our thoughtful consideration to the justification expressed
at the behest of the respondents, for approaching the Tribunal, after a
period of 28 years, court is of the view, that the explanation tendered,
cannot be accepted. Undoubtedly, the claim (pertaining to an accident
which had occurred on 02.02.1977), in the facts and circumstances of the
instant case, was stale, and ought to have been treated as a dead claim, at
the point of time, when the respondents approached the Tribunal by filing
a claim petition, on 23.02.2005.
In view of the reasons recorded hereinabove, court hereby set aside
the impugned order dated 07.07.2015, and allow the instant appeal, by
holding, that the claim raised by the respondents before the Motor
Accident Claims Tribunal, was not a surviving claim, when the
respondents approached the said Tribunal. M/s Purohit and Company
V. Khatoonbee and another, 2017 (35) LCD (SC) 2206

Muslim Personal Law (Shariat) Application Act

Sec. 2 – Constitution of India – Triple Talaq – Constitutionality and
legal sanctity – Triple talaq lacks legal sanctity
Constitutional democracy of India cannot conceive of a
legislation which is arbitrary – Sources other than Holy Quran are
only to supplement what is given in it and to supply what is not
provided for – There cannot be any Hadith, Ijma or Qiyas against
what is expressly stated in Quran – Islam cannot be anti-Quran –
Holy Quran has attributed sanctity and permanence to matrimony –
However, in extremely unavoidable situations, talaq is permissible –
But an attempt for reconciliation and if it succeeds, then revocation
are Quranic essential steps before talaq attains finality – In triple
talaq, this door is closed, hence, triple talaq is against basic tenets of
Holy Quran and consequently, it violates Shariat – 1937Act simply
makes Shariat applicable as rule of decision in matters enumerated in
Section 2 – While talaq is governed by Shariat, specific grounds and
procedure for talaq have not been codified in 1937 Act.
The petitioner-Shayara Bano, has approached this Court, for assailing the
divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015,
wherein he affirmed ―...in the presence of witnesses saying that I gave
‗talak, talak, talak‘, hence like this I divorce from you from my wife.
From this date there is no relation of husband and wife. From today I am
‗haraam‘, and I have become ‗naamharram‘. In future you are free for
using your life ...‖. The aforesaid divorce was pronounced before
Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of
Ityaz Hussain) – the two witnesses. The petitioner has sought a
declaration, that the ‗talaq-e-biddat‘ pronounced by her husband on
10.10.2015 be declared as void ab initio. It is also her contention, that
such a divorce which abruptly, unilaterally and irrevocably terminates the
ties of matrimony, purportedly under Section 2 of the Muslim Personal
Law (Shariat) Application Act, 1937 (hereinafter referred to as, the
Shariat Act), be declared unconstitutional. During the course of hearing, it
was submitted, that the ‗talaq-e-biddat‘ (-triple talaq), pronounced by her
husband is not valid, as it is not a part of ‗Shariat‘ (Muslim ‗personal
law‘). It is also the petitioner‘s case, that divorce of the instant nature,
cannot be treated as ―rule of decision‖ under the Shariat Act. It was also
submitted, that the practice of ‗talaq-e-biddat‘ is violative of the
fundamental rights guaranteed to citizens in India, under Articles 14, 15
and 21 of the Constitution. It is also the petitioner‘s case, that the practice
of ‗talaq-e-biddat‘ cannot be protected under the rights granted to
religious denominations (-or any sections thereof) under Articles 25(1),
26(b) and 29 of the Constitution. It was submitted, that the practice of
‗talaq-e-biddat‘ is denounced internationally, and further, a large number
of Muslim theocratic countries, have forbidden the practice of ‗talaq-e-
biddat‘, and as such, the same cannot be considered sacrosanctal to the
tenets of the Muslim religion.
It is claimed by the respondent-husband, that he made another attempt to
bring back the petitioner-wife from her parental home on 09.08.2015, but
Shayara Bano refused to accompany him. It is submitted, that Rizwan
Ahmad was opposed in the above endeavour, both by the petitioner‘s
father and her maternal uncle.
It is the case of the respondent – Rizwan Ahmad, that in view of the above
averments of the petitioner – Shayara Bano, he felt that his wife was not
ready for reconciliation, and therefore, he withdrew the suit (-for
restitution of conjugal rights), PREFERRED BY HIM AT Allahabad, and
divorced the petitioner – Shayara Bano, by serving upon her a ‗talaq-
nama‘ (deed of divorce) dated 10.10.2015.
It is also the submission of the respondent – husband, that the present writ
petition filed by the petitioner-wife under article 32 of the Constitution of
India, is not maintainable, as the questions raised in the petition are not
justiciable under Article 32 of the Constitution.
Keeping in view the factual aspect in the present case, as also, the
complicated questions that arise for consideration in this case (and, in the
other connected cases), at the very outset, it was decided to limit the
instant consideration, to ‗talaq-e-biddat‘ – triple talaq. Other questions
raised in the connected writ petitions, such as, polygamy and ‗halala‘ (-
and other allied matters), would be dealt with separately. The
determination of the present controversy may however, coincidentally
render an answer even to the connected issues. Shayara Bano V. Union
of India 2017 (5) Supreme 577
Narcotic Drugs and Psychotropic Substance Act
Ss. 35 & 54 – Presumptions rebuttable – Does not dispense with
prosecution obligation to prove charges beyond all reasonable doubt –
Conviction cannot be made on preponderance of probability – Right
of accused to a fair trial cannot be whittled down.
In a case of sudden recovery, independent witness may notbe available.
But if an independent witness is available, and the prosecution initially
seeks to rely upon him, it cannot suddenly discard the witness because it
finds him inconvenient, and place reliance upon police witnesses only. In
the stringent nature of the provisions of the Act, the reverse burden of
proof, the presumption of culpability under Section 35, and the
presumption against the accused under Section 54, any reliance upon
Section 114 of the Evidence Act in the facts of the present case, can only
be at the risk of a fair trial to the accused.
The presumption against the accused of culpability under Section 35, and
under Section 54 of the Act to explain possession satisfactorily, are
rebuttable. It does not dispense with the obligation of the prosecution to
prove the charge beyond all reasonable doubt. The presumptive provision
with reverse burden of proof, does not sanction conviction on basis of
preponderance of probability. Section 35 (2) provides that a fact can be
said to have been proved if it is established beyond reasonable doubt and
not on preponderance of probability. That the right of the accused to a fair
trial could not be whittled down under the Act.Naresh Kumar alias Nitu
V. State of Himachal Pradesh 2017 (6) Supreme 263
Negotiable Instrument Act:
Sec. 138 – Parties compromising during pendency of revision petition
before High Court – Respondent receiving entire amount claimed –
Not objecting to impugned order being set aside – Effect of.
Learned counsel for the parties submit that during the pendency of the
revision case before the High Court the matter was compromised. Learned
counsel for the appellant submits that the entire amount has been paid to
the first respondent. Learned counsel for the first respondent submits that
the first respondent has received the entire amount. Therefore, he has no
objection if the conviction already recorded under Section 138 of the NI
Act is set aside. Since the parties have settled their disputes, we allow the
parties to compound the offence, set aside the judgment of the courts
below and acquit the appellant of the charges against her. Smt. P.
Chandrakala V. K. Narender 2017 (6) Supreme 164

Ss.138
Now the issue before us is even though the first notice was issued
by the appellant within time to the correct address of the first respondent,
whether the High Court was right in rejecting the case of the appellant
herein on the ground that second notice was issued beyond the period of
limitation i.e. 15 days from the date of receiving dishonour intimation
from the bank under Clause (b) of the proviso to Section 138 of the N.I.
Act.
It is clear from Section 27 of the General Clauses Act, 1897 and Section
114 of the Indian Evidence Act, 1972, that once notice is sent by
registered post by correctly addressing to the drawer of the cheque, the
service of notice is deemed to have been effected. Then requirements
under proviso (b) of Section 138 stands complied, if notice is sent in the
prescribed manner. However, the drawer is at liberty to rebut this
presumption.
It is well settled that interpretation of a Statute should be based on the
object which the intended legislation sought to achieve.
"It is a recognized rule of interpretation of statutes that expressions used
therein should ordinarily be understood in a sense in which they best
harmonize with the object of the statute, and which effectuate the object of
the Legislature. If an expression is susceptible of a narrow or technical
meaning, as well as a popular meaning, the Court would be justified in
assuming that the Legislature used the expression in the sense which
would carry out its object and reject that which renders the exercise of its
power invalid"New India Sugar Mills Ltd. v. Commissioner of Sales Tax,
1963 AIR(SC) 1207.
This Court in catena of cases has held that when a notice is sent by
registered post and is returned with postal endorsement "refused" or "not
available in the house" or "house locked" or "shop closed" or "addressee
not in station", due service has to be presumed Jagdish Singh v. Natthu
Singh, 1992 1 SCC 647; State of M.P. v. Hiralal, 1996 7 SCC 523 and V.
Raja Kumari v. P. Subbarama Naidu, 2004 8 SCC 774.Though in process
of interpretation right of an honest lender cannot be defeated as has
happened in this case. From the perusal of relevant sections it is clear that
generally there is no bar under the N.I. Act to send a reminder notice to
the drawer of the cheque and usually such notice cannot be construed as
an admission of non-service of the first notice by the appellant as has
happened in this case.
Moreover the first notice sent by appellant on 12-04-1991 was
effective and notice was deemed to have been served on the first
respondent. Further, it is clear that the second notice has no relevance at
all in this case at hand. Second notice could be construed as a reminder of
respondent's obligation to discharge his liability. As the complaint, was
filed within the stipulated time contemplated under Clause (b) of Section
142 of the N.I. Act, therefore Section 138 r/w 142 of N.I. Act is attracted.
In the view of the matter, we set aside the impugned judgment of the High
Court. N. Parameswaram Unni V. G Kannan And Another 2017
C.R.L.J 2838

Sec. 138 r/w 142 – Second Notice – Relevance of

When a notice is sent by registered post and is returned with postal
endorsement "refused" or "not available in the house" or "house locked"
or "shop closed" or "addressee not in station", due service has to be
presumed. From the perusal of relevant sections it is clear that generally
there is no bar under the N.I. Act to send a reminder notice to the drawer
of the cheque and usually such notice cannot be construed as an admission
of non-service of the first notice by the appellant as has happened in this
case. Moreover the first notice sent was effective and notice was deemed
to have been served on the accused. Further, it is clear that the second
notice could be construed as a reminder to discharge his liability. As the
complaint, was filed within the stipulated time contemplated under Clause
(b) of Section 142 of the N.I. Act, therefore Section 138 r/w 142 of N.I.
Act is attracted. N. Prameswaran Unni V. G. Kannan and another,
(2017) 2 SCC (Cri) 668 ; (2017) 5 SCC 737.

Practice and Procedure

No conflict in judgment and decree vide 1995 – Decree in tune with
the judgment covering the issues effectively decided and not those left
out – No error.
 On the basis of Bhikhi Lal V. Tribeni, AIR 1965SC 1935 it was
submitted that the decree has to be in accordance with the judgment, we
find that the decree is wholly in tune with the judgment and the isssues
which were effectively decided by this Court and what was left open is
absolutely in no conflict with the findings recorded in the judgment and in
the decree. The decree is in accordance with the aforesaid dictum of this
Court. K.S. Varghese V. St. Peter‘s & Paul‘s Syrian Orth. 2017 (5)
Supreme 207

Prevention of Corruption Act:

Sec. 13(1)(e), Explanation – ‗Known sources of income‘ – What it
constitutes?
The explanation to Section 13(1)(e) elucidates the words ―known
sources of income‖ to mean income received from any lawful source and
that such receipt has been intimated in accordance with the provisions of
law, rules, orders for the time being applicable to a public servant. Vasant
Rao Guhe V. State of Madhya Pradesh 2017(6) Supreme 153

Prevention of Money Laundering Act:

Sec. 45 – High Court granting bail without complying with sec. 45 –
Not permissible.
In this case the High Court has not complied with the requirement
of Section 45 of the prevention of Money Laundering act, 2002 (in short
‗the PMLA‘). While granting bail, the High Court has failed to comply
with the requirement of condition (ii) of Section 45 of the PMLA.
It is the case where the appellant is not only involved in the PMLA
but also in the Narcotic Drugs and Psychotropic Substance Act, 1985 ( in
short ‗the NDPS Act‘). Without complying with the requirements of
section 45 of the PMLA, the High Court should not have granted the bail.
As such the impugned order is set aside. Union of India V. Varinder
Singh @ Raja 2017(6) Supreme 162

Provincial Small Cause Courts Act

Secs.15, 26 (as amended by Act.No. 24 of 1984), Sch. II, Art. 11—
Protection of Women from Domestic Violence Act, Ss. 19, 26—
Counter claim—Maintainability
When suit filed by plaintiff for determination or enforcement of his
right as licensor can be taken cognizance by Judge, Small Cause Court fail
to see that why relief claimed by defendant in Court of Small Causes
within meaning of Section 26 of Act of 2005 cannot be considered by
Judge, Small Cause Court. In facts of present case, bare and embargo
under Item No. 11 of Schedule II read with Section 15 of Act, 1887 stand
whittled down and engulfed by virtue of Section 26, sub-section (1) as
applicable in Maharashtra.
Section 26 of Act, 2005 has to be interpreted in manner to
effectuate very purpose and object of Act. Unless determination of claim
by aggrieved person seeking any order as contemplated by Act, 2005 is
expressly barred from consideration by Civil Court, SupremeCourt shall
be loath to read in bar in consideration of any such claim in any legal
proceedings before Civil Court. When proceeding initiated by plaintiff in
Judge, Small Cause Court alleged termination of gratuitous licence of
defendant and prays for restraining defendant from using suit flat and
permit plaintiff to enter and use flat, right of residence as claimed by
defendant in interconnected with such determination and refusal of
consideration of claim of defendant as raised in her counter claim shall be
nothing but denying consideration of claim as contemplated by Section 26
of Act, 2005 which shall lead to multiplicity of proceedings, which cannot
be object and purpose of Act, 2005. Thus, counter claim filed by
defendant before Judge, Small Cause Court is fully entertainable and
courts below committed error in refusing to consider such claim. Vaishali
Abhimanyu Joshi V. Nanasaheb Gopal Joshi, AIR 2017 SC 2926

Rent Control Act

Revisional Jurisdiction- Concurrent finds on facts with regard to
bona fide requirements- High Court should not have ventured to look
into the evidence as if in a first appeal and entered a different finding
– Merely because another view is possible in exercise of the revisional
jurisdiction, the High Court cannot upset the factual findings-
Whether the High Court had misdirected itself and exceeded its
jurisdiction- Held, Yes- Whether the order of eviction passed by the
Rent Controller, as upheld by the Appellate Authority, is liable to be
restored – Held, Yes
We are afraid, the High Court has misdirected itself and exceeded its
jurisdiction. In revisional jurisdiction, the Court is expected to see only
whether the findings are illegal or perverse in the sense that a reasonably
informed person will not enter such a finding.
There is no dispute with respect to the landlord-tenant relationship. The
bonafide requirement also has been concurrently found by the Rent
Controller as well as by the Appellate Authority. The High Court should
not have ventured to look into the evidence as if in a first appeal and
entered a different finding, though another finding might also be possible.
Merely because another view is possible in exercise of the revisional
jurisdiction, the High Court cannot upset the factual findings.
The judgment of the High Court is set aside. The appeal is allowed. The
order passed by the Rent Controller, as upheld by the Appellate Authority,
is restored. Gandhe Vijay Kumar V. Mulji @ Mulchand, 2017 (8)
SCALE 388

House and Rents-Suit for recovery of possession-On ground of

bonafide requirement, willful default, etc-Decreed by both Courts
below-High Court reversed the decree holding landlords failed to
explain the circumstances in which landlord obtained vacant
possession or on how it was being utilized-Sustainability of-Co-owners
cannot be compelled to carry on business jointly since they are best
judges of their need- High Court overlooked the explanation from
landlords of the manner in which the shop which had fallen vacant
was being utilized, there was in fact an explanation-High Court
cannot interfere with the concurrent factual findings while exercising
jurisdiction under S. 115 CPC-Impugned order set aside.
The High Court cannot interfere with the concurrent factual findings while
exercising jurisdiction under Section 115 of the Civil Procedure Code. It
is settled law that revisional of the High Court is restricted to cases of
illegal or irregular exercise of jurisdiction by the subordinate Courts.
Under Section 115 of the Civil Procedure Code, it is not open for the High
Court to correct errors of facts or law unless they go to root of the issue of
jurisdiction. In the facts on hand, the Courts below have passed reasoned
orders well within the jurisdiction conferred upon them. We arrive at the
conclusion that the High Court committed error in interfering with the
judgment and decree of the trial Court.
Moreover, there is a manifest error on the part of the High Court in
holding that the landlords failed to explain the circumstances in which
they obtained vacant possession of one shop on 19 July 2005 or on how it
was being utilized. We have, in the earlier part of this judgment, extracted
the findings of the trial Court and the first appellate Court, which indicate
that in the shop of which vacant possession was obtained, a provision
store is being conducted jointly. In this background, it was found that the
need felt by the father as head of the family that his sons should be settled
in independent businesses was genuine. The co-owners cannot be
compelled to carry on business jointly since they are the best judges of
their need. The High Court has overlooked these findings and has arrived
at a patently erroneous conclusion that there was no explanation from the
landlords of the manner in which the shop which had fallen vacant was
being utilized. There was in fact an explanation. Each of the reasons
which weighed with the High Court in reversing the concurrent findings
were hence specious.
In view of the above discussion, the order of the High Court is set aside
and consequently the appeal stands allowed. However, in view of the fact
that the defendants/respondents are running business in the premises right
from 1979, we deem it appropriate to grant six months time to vacate the
premises, subject to the filing of usual undertaking to handover possession
of the shop to the appellants accordingly. Ambadas Khanduji Shinde
and others V. Ashok Sadashiv Mamurkar and others, 2017 (2) ARC
466 Supreme Court.

Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act:
Sec. 24(2) – Compensation not paid – Acquisition lapsed.
The appellant – Delhi Development Authority is aggrieved by the
Judgment dated 22.12.2014 passed by the High Court of Delhi, whereby
the High Court declared that the acquisition proceedings in question have
lapsed on account of operation of Sec. 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (in short, ―2013 Act‖)
In the case before us, the High Court has taken note of the fact that
the compensation has never been paid to the owners. Be that as it may, the
main contention urged is that the writ petitioner has no locus standi to file
a Writ Petition for the declaration that the proceedings have lapsed. Delhi
Development Authority V. Islamuddin 2017 (5) Supreme 89

Right to Information Act

Ss. 6 & 8(1) (j) –Scope of – Whether application made by respondent
1 u/s 6 of the Act was not maintainable?
In our considered opinion, the aforementioned principle of law applies to
the facts of this case on all force. It is for the reasons that, firstly, the
information sought by respondent No.1 of individual employees working
in the Bank was personal in nature; secondly, it was exempted from
being disclosed under Section 8(j) of the Act and lastly, neither
respondent No.1 disclosed any public interest much less larger public
interest involved in seeking such information of the individual employee
and nor any finding was recorded by the Central Information Commission
and the High Court as to the involvement of any larger public interest in
supplying such information to respondent No.1.
It is for these reasons, we are of the considered view that the application
made by respondent No.1 under Section 6 of the Act was wholly
misconceived and was, therefore, rightly rejected by the Public
Information Officer and Chief Public Information Officer whereas
wrongly allowed by the Central Information Commission and the High
Court. Canara Bank Rep. by Its Deputy Gen. Manager V. C.S. Shyam
& Anr. 2017 (11) SCALE 1
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act
Sec. 13(2) – Realization of dues – Only that part of the property
should be sold which is enough to satisfy the amount to be realized –
Sale of entire mortgaged property is not necessary.
It was submitted on the strength of decision in Balakrishnan V.
Malaiyandi Konar (2006) 3 SCC 49: 2006 (2) Supreme 203 that only that
part fo the property should be shold which may be necessary to satisfy the
decree. There is no dispute with aforesaid proposition and Recovery
Officer shall take care to sell only that plart of the plroperty which is
enough to satisfy the amount to be realized. Sale of entire mortgaged
property is not necessary. Maharaji Educational Trust V. Housing &
Urban development Corporation Ltd. 2017 (5) Supreme 75

Service Law:
Employment secured by furnishing false caste certificate – removal of
respondent – No error.
The order for removal of the respondent who was working as
Farash in the office of the Revenue Divisional Commissioner, Central
Division, Cuttack (Second respondent) was set aside by the Orissa
Administrative Tribunal, Cuttack. The judgment of the Tribunal was
confirmed by the Division Bench of the High Court of Orissa at Cuttack.
We have examined the material on record and the submissions made by
the learned counsel appearing for the parties. We are not in agreement
with the judgment of the Tribunal as confirmed by the High Court that the
Respondent is entitled for reinstatement for the following reasons:
a. It is clear from the record that the Respondent was sponsored by
the Employment Exchange as a candidate belonging to a Schedule Tribe
community. His name would not have been sponsored but for the
certificate which showed that he belongs to Schedule Tribes community.
b. The State Level Scrutiny Committee recorded a finding that the
Respondent indulged in fraud in obtaining a certificate showing that he
belongs to a Schedule Tribe. The Committee recommended action to be
taken against the officer who had issued the certificate. The order passed
by the State Level Scrutiny Committee has become final as it has not been
set aside by any Court.
c. Though he was appointed in a post not reserved for Schedule
Tribes, he would not have been in the zone of consideration if he did not
produce the certificate showing that he belongs to Schedule Tribes.
d. The Tribunal has committed a serious error in recording a finding
that there is no evidence to show that the Respondent has obtained the
certificate only to procure employment.
e. It is clear from the facts that the Respondent fraudulently obtained
a certificate showing that he belongs to Schedule Tribes community which
stands cancelled by the order passed by the State level scrutiny committee.
It was held by Denning, L. J. in Lazarus Estates, Ltd. v. Beasley (1956) 1
All E.R. 341, 345 that ―No Court will allow a person to keep an advantage
which he has obtained by fraud. [...] Fraud unravels everything. The Court
is careful not to find fraud unless it is distinctly pleaded and proved; but
once it is proved it vitiates judgments, contracts and all transactions
whatsoever‖. State of Orissa V. Bibhisan Kankar 2017 (5) Supreme
814
Promotion – Empanelment and qualifying merit bench mark – Does
not confer any vested right for promotion.
The fact that the appellant has been empanelled in the list of
candidates due for promotion and also qualified the merit bench mark,
does not mean that he has acquired any vested right. The promotion to the
post of JWO, indisputably, is a select promotion hedged with the medical
fitness eligibility criterion to be fulfilled by the incumbent. That is not so
in the case of time bound promotion. We hold that there is no substance in
the contention that the appellant has in fact or in law been discriminated in
the manner. SBT Chaman Lal V. Union of India 2017(6) Supreme 166

Regularization – Appointment of Shiksha Mitras only contractual –

Not as per qualification prescribed for a teacher – Nor given
designation of teacher – Appointment not in pay scale of teachers –
Not covered by exceptions carved out by Supreme Court.
The High court quashed the Uttar Pradesh Basic Education
(Teachers) Service (Nineteenth Amendment ) Rules 2014, insofar as they
prescribe as a source of recruitment in Rules 5(2) the appointment of
Shiksha Mitras; the academic qualifications for the recruitment of Shiksha
Mitras in Rules 8(2) (c) and for the absorption of Shiksha Mitras as
Assistant Teachers in junior basic schools under Rule 14(6) as being
unconstitutional and ultra vires. All consequential executive orders of the
State Government providing for the absorption of Shiksha Mitras into the
regular service of the State as Assistant teachers were also quashed and set
aside.
The main question for consideration in these appeals therefore is
whether it is permissible to appoint teachers for basic education who do
not have the requisite statutory qualifications?
Difficulty which stares one in the face is the law laid down by this Court
on regularization of contractually appointed persons in public
employment. Appointment of
Shiksha Mitras was not only contractual, it was not as per qualification
prescribed for a teacher nor on designation of teacher nor in pay scale of
teachers. Thus, they could not be regularized as teachers. Regularization
could only be of mere irregularity. The exceptions carved out by this
Court do not apply to the case of the present nature. .
In view of our conclusion that the Shiksha Mitras were never
appointed as teachers as per applicable qualifications and are not covered
by relaxation order under Section 23(2) of the RTE Act, they could not be
appointed as teachers in breach of Section 23(1) of the said Act. The State
is not competent to relax the qualifications. State of U.P. V. Ananad
Kumar Yadav 2017 (6) Supreme 177

Specific Relief Act

Section 16 (C) Specific performance of agreement to sell- Concurrent
finds of fact, held binding on this Court
Here is a case where all the three Courts, namely, Trial Court, first
Appellate Court and the High Court concurrently held in favour of the
respondent (plaintiff) and accordingly decreed his civil suit. In other
words, all the three Courts, on appreciating the evidence in their
respective jurisdiction and discretion, held that the defense taken by the
appellant (defendant) was not proved. On the other hand, it was held that
the respondent was able to prove that the agreement was real, bona fide
and genuine and was thus capable of enforcement. Indeed, we find that the
Courts below recorded this categorical finding of fact saying that the
genuineness of the agreement was even admitted by the defendant's
witnesses. The Courts below also recorded a finding that the respondent
was ready and willing to perform his part of the agreement and, in fact,
performed his part of the agreement whereas the appellant failed to
perform his part of the agreement and thereby committed its breach.
In court considered opinion, the findings recorded by the three courts on
facts, which are based on appreciation of evidence undertaken by the three
Courts, are essentially in the nature of concurrent findings of fact and,
therefore, such findings are binding on this Court. Indeed, such findings
were equally binding on the High Court while hearing the second appeal.
It is more so when these findings were neither found to be perverse to the
extent that no judicial person could ever record such findings nor these
findings were found to be against the evidence, nor against the pleadings
and lastly, nor against any provision of law.
In court considered opinion, the question as to whether specific
performance of an agreement should be granted or not is essentially in the
discretion of the Court. Indeed section 20 of the Specific Relief Act says
so in no uncertain term.
Therefore, once the Trial Court, first and second Appellate Court formed
an opinion and decided to grant the specific performance of the agreement
to the plaintiff in exercise of their respective discretionary powers, this
Court being the last Court in hierarchy cannot disturb such concurrent
findings while exercising power under Article 136 of the Constitution of
India. As mentioned above, these findings are binding on this Court.
Parminder Singh V. Gurpreet Singh, 2017 (8) SCALE 382

Transfer of Property Act:

Sec. 54 – Question of law whether unregistered agreement for sale
creates a charge on the property – Left open.
 The agreement entered into was not registered as such no right
could occur as per provisions of Section 54 of T.P. Act prevailing in State
of Uttar Pradesh. However the Hon‘ble Court refrained to comment
finally on the said issue. However, fact remains that the registration of
agreement has been made subsequently and stamp duty of more than Rs. 4
crores has been paid. Effect thereof has to be considered in appropriate
proceedings /arbitral tribunal. Maharaji Educational Trust V. Housing
& Urban development Corporation Ltd. 2017 (5) Supreme 75

Ss. 54 and 55 – Agreement for sale with or without possession, not a

conveyance – There can be no transfer of any right, title or interest in
any immoveable property except by way of a registered document –
This document does not transfer any right, title or interest of the
property.
Immoveable property can be transferred only by a Registered document.
There can be no transfer of any right, title or interest in any immoveable
property except by way of a registered document.
As far as the present case is concerned, the very foundation of the case of
the respondent No.1 i.e. agreement to sell is doubtful. The original has not
seen the light of day and only photocopy thereof was filed. There are
doubts with regard to the signature of Shri Dhillon P. Shah. As pointed
out earlier, the Bank attached the property in question in the year 2001.
Shri Dhillon P. Shah died in the year 2004 and during these three years
though Shri Shah and his wife filed various legal proceedings, they never
disclosed that this flat had been sold by them. The respondent No.1,
during the life time of Shri Dhillon
P. Shah never claimed ownership of the flat.
Shri Dhillon P. Shah and his wife never disclosed the fact of the alleged
sale of the suit property to anybody including any member of the Society.
It is more than obvious that with a view to wriggle out of the recovery
proceedings, after the death of Shri Dhillon P. Shah this document has
been fabricated. This document does not transfer any right, title or interest
of the property and, therefore, the Revisional Court and the High Court
erred in allowing the claim of the respondent No.1 The Greater Bombay
Co – operative Bank Ltd. V. Mr. Nagraj Ganeshmal Jain 2017 (6)
Supreme 239

Sec. 58 (C) -Mortgage by conditional sale, or a sale with an option to

repurchase – Decisive factors
The appellants‘ suit for redemption of mortgage, decreed by two
courts, has been reversed in second appeal by the High Court The parties
shall be referred to by their respective positions in the suit, for
convenience.
The only question of law for consideration is, whether the deed
dated 21.04.1953, Exhibit 62, was a mortgage by conditional sale, or a
sale with an option to repurchase.
Decisive factors for determination whether a document is a
mortgage by conditional sale and not a sale with an option to repurchase
are: ostensible sale with transfer of possession and ownership, but
containing a clause for reconveyance in one document; debtor and creditor
relationship; valuation of property and transaction value; and duration of
time for reconveyance. Vithal Tukaram Kadam V. Vamanrao
Sawalaram Bhosale 2017 (6) Supreme 158
U.P. Consolidation of Holdings Act
Sec. 5—Transfer of land by way of sale—If suit property was
‗chakout‘ and outside purview of Consolidation scheme—Permission
of Settlement Officer not required before transferring it
The purpose of a consolidation scheme is to provide consolidation
of agricultural holdings. Abadi land, groves etc. are kept outside the scope
of consolidation scheme. They cannot be re-allocated or re-allotted to any
other person. Therefore, strictly speaking, they are not subject matter of
the consolidation scheme. The intention of introducing Section 5(c)(ii) of
the Act was that if the land holding is subject to consolidation proceedings
then permission of the Settlement Officer (Consolidation) is required
before the same is transferred. This is so because if the land, which is
subject matter of consolidation proceedings, is sold or permitted to be
transferred during consolidation proceedings, it could affect the entire
consolidation scheme. However, if the land is not subject matter of the
consolidation scheme, though it may be part of the holding of the tenure
holder, then no permission is required. Admittedly, the suit property was
"Chakout" and outside the purview of the consolidation scheme inasmuch
as its value could not be taken into consideration while framing the
scheme and it could not be allocated or allotted to any other person.
Hence, no permission of Settlement Officer was required to sell land in
question. Suraj Pal (D) Thr. LR V. Ram Manorath, AIR 2017 SC 3825

Wakf Act
Sec.4(1A) (as amended by Act 27 of 2013)—Preliminary survey of a
Wakf—S.4(1A) applies only if survey of a Wakf was not done prior to
commencement of Wakf (Amendment) Act, 2013
 In the matter on hand, the said provision also will not come to the
aid of the plaintiff inasmuch as the said sub-section can be employed only
if survey of a wakf was not done before the commencement of Wakf
(Amendment) Act, 2013. Admittedly in the matter on hand, the survey
was conducted prior to 1962 and based on such Surveyor‘s report only,
the list was prepared and the same was submitted to State Government,
which in turn, was forwarded to Wakf Board, the Wakf Board after
examining the report published the list in the Official Gazette in the year
1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the
plaintiff. Madanuru Sri Rama Chandra Murthy vs. Syed Jalal, AIR
2017 SC 2653

Words and Phrases:

‗Moral Turpitude‘ is an expression which is used in legal as also societal
parlance to describe conduct which inherently base, vile, depraved or
having any connection showing depravity‖ State of Haryana and
another v. Ved Kaur, 2017 (35) LCD 1981
 PART – 2 (HIGH COURT)

Arbitration and Conciliation Act

Ss. 34(3), 31 (5) Setting aside of Arbitral award on ground of
limitation – Validity of.
This is an appeal under Section 37 of Arbitration and Conciliation Act,
1996 (hereinafter referred to as the, Act 1996) arising from the judgment
and order, dated 24.08.2005, passed by District Judge, Lucknow in
Arbitration (misc.) Case No. 225/2005 whereby appellant‘s petition under
Section 34 of Act 1996, praying for setting aside Arbitral award, dated
29.03.2000, has been dismissed on the ground that said petition/objection
was filed on 18.08.2005, that is beyond the period of limitation and
beyond even maximum extendable period of limitation and, therefore,
bared by limitation.
Even otherwise limitation is an Issue which costs an obligation upon
Court not to entertain a matter, if it is barred by limitation. When facts
have come before this Court that arbitral award was received by parties on
the date when it was pronounced and in fact it was given effect to by
Shyam Kishor Tiwari and two of requisite amount were handed over to
respondent-1, there remains nothing to be done further and for the purpose
of limitation, it will commence from that date itself. Apparently, petition
is barred by limitation having been filed in 2005, we find no error in the
order of District Judge, dismissing petition as barred by limitation. Smt.
Prem Lata Tewari and others V. Sushil Kumar and another, 2017 (5)
ALJ (LB).
Civil Procedure Code

Sec. 47 – Objection against execution of decree – Passed in civil suit

against appellant‘s predecessor seeking declaration and other
consequential relief in relation to suit land – Objection rejected –
When the objection was not even raised at any stage of the
proceedings then it cannot be allowed to be raised for the first time in
this appeal – Nothing prevented the judgment debtor to raise
objections to enable the Courts to record their findings on such
objections – Any enquiry into the objections would have taken the
executing Court behind the decree which was not permissible in law-
Rejection proper.
First, this objection was neither raised before the Executing Court nor the
first appellate Court and not the High Court in other words, when the
objection was not even raised at any stage of the proceedings then it
cannot be allowed to be raised for the first time in this appeal. Nothing
prevented the judgment-debtors to raise this objection along with several
other objections to enable the Courts to record their finding on such
objection. It was, however, not done.
If the rights of the parties had already been crystallized then, in our
opinion, subsequent change in law would not take away such rights which
had attained finality due to lis coming to an end inter parties prior to such
change.
There in one more distinguishing fact due to which law laid down in
Darshan Singh and kesar Singh (supra) cannot be applied to the facts of
this case. It is not in dispute that the provisions of the Amendment act of
1973 are applicable only to the State of Punjab whereas the case in hand
arises out of State of Haryana. There is nothing on record to show that the
provisions of this Act were extended to the State of Haryana also and, if
so, since when and by which adaptation of the laws.
Though learned counsel for the appellants did not attack the concurrent
findings of the two courts in this appeal, yet we have perused the findings
and find that they were properly recorded. In the first place, the objections
raised were all on the facts which could not be enquired into execution
proceedings. Second, it is a settled principle of law that the executing
Court cannot go behind the decree. This principle squarely applies to the
facts of this case because all the factual objections raised by the appellants
could be raised only in the suit in its trial but not in execution
proceedings. In other words, any enquiry into the objections would have
taken the executing Court behind the decree which was not permissible in
law.
In the light of foregoing discussion, we find no merit in the appeal, which
fails and is hereby dismissed.Lekh Raj (Dead) Through L.Rs. & Ors. V.
Ranjit Singh &Ors., 2017(3) ARC 3

Sec. 96 – Specific Relief Act, 1963-Sec. 38-Suit for permanent

injunction-Right over the suit property claimed on basis of two
lease/patta executed by Gaon Sabha-Suit dismissed-Holding suit
property Abadi of defendants/respondents over which they are in
possession-Plaintiff/appellant has not been able to show any
independent right upon the land over which situates the house
existing in the name of his two sons although the house was
constructed by plaintiff-Inconsistency in eastern boundary as per
lease deed vis-a-vise the eastern boundary shown in the plaint map
remains unexplained-Plaintiff is in possession over the land leased out
to him and two houses of his sons exist over it, and he is now trying to
encroach upon land in addition to what was leased out to him-
Plaintiff/appellant since has failed to establish that the description of
suit property matches with the description of property leased out to
him-Dismissal of suit proper.
The finding of the trial court that defendants-respondents are in
possession, and had raised constructions, which belongs to them, is also
based on appreciation of evidence brought on record. Plaintiff-appellant
since has not been able to establish his right or possession over the suit
property, as described in the plaint, the appeal is found to be lacking in
substance, and is accordingly dismissed. Shri Chand V. Harbans And
Ors., 2017(2) ARC 710.

Sec. 100 – Suit for cancellation of sale deed and injunction-Trial

proceeded ex parte, the suit dismissed-Appeal against also dismissed-
Justification of-Even if a written statement has not been filed, the
Court can still require the plaintiff to prove his plaint case-Courts
below upon appreciation of evidence on record found plaintiff failed
to prove his case- Dismissal proper.
The ratio of the judgment cited is that even if a written statement has not
been filed, the Court can still require the plaintiff to prove his plaint case.
Both the courts below proceeded, accordingly and upon appreciation of
the evidence on record found that the plaintiff has failed to prove his case.
They have accordingly dismissed the suit and appeal.
The two courts below have also referred to the documentary evidence,
filed by the plaintiff. The fact that documentary evidence was filed on
record, clearly proves that adequate opportunity was granted to the
plaintiff to adduce evidence and, therefore, the second submission of
counsel for the appellants that they were never granted opportunity to
adduce oral evidence, is without substance.
The lower appellate court while considering the documentary evidence
filed by the plaintiff-appellants including the sale-deed executed by them
and on the basis of what was recorded therein found that the entire sale
consideration had been paid to the plaintiffs. In pursuance of the
registered sale deed, the defendants have been duly muted over the land
subject matter of the sale-deed. Accordingly, the sale deed was found to
be for consideration and that no fraud could be established by the plaintiff.
A finding has also been recorded that the plaintiffs have failed to prove
their possession over the suit property.
In view of the above discussion and since no substantial question of law
arises for consideration in the second appeal, the same is, accordingly,
dismissed.
In view of the above discussion and since no substantial question of law
arises for consideration in the second appeal, the same is, accordingly,
dismissed. Mahesh &Another V. Malkhan Singh & Another, 2017 (2)
ARC 868

Sec. 100 & O. 22, R.3-Suit for eviction and permanent injunction-
Plaintiff being central council Radhasoami Satsang filed suit against
defendants/licensee-During pendency of the suit many plaintiffs died-
Application under O. 22, R. 3 by defendant-Application allowed-
Appeal against also dismissed-Second appeal against-Maintainability
of-The order of abatement not a decree in terms of S. 2(2) CPC as
there is no adjudication of rights of parties on merit, hence it cannot
be said to be a decree-Second appeal not maintainable accordingly
rejected.
This second appeal is by the plaintiffs-Central Council Radhasoami
Satsang and its members, against the judgment and order dated 09th
November, 2016 passed by the learned Additional District Judge, Court
No. 12, Agra 1 in Civil Appeal No. 96 of 2012, Central Council
Radhasoami Satsang and others v. Dr. D.K. Hazara, and the order dated
24th February, 2012 passed by the learned Additional Civil Judge (Senior
Division), Court No. 5, Agra2 in Original Suit No. 223 of 1989, Central
Council Radhasoami Satsang v. Dr. Daya Kishore Hazara, allowing the
application of the defendant-respondent for abatment of the suit and
rejecting the application of the plaintiffs for impleadement of some of the
members of the society as plaintiff in the suit.
What emerges from the aforesaid judgments is that the order of abatement
is not a decree terms of Section 2(2) CPC as there is not adjudication of
rights of the parties on merit, hence it cannot be said to be a decree.
After careful consideration of the submissions made by the learned
counsel for the parties, the material on the record and the law discussed
above, I am of the view that the preliminary objection raised by Sri Ravi
Kant, learned Senior Counsel appearing for the respondent, merits
acceptance. Hence, the appeal is dismissed as not maintainable.
No order as to costs. Central Council Radhasoami Satsang And 21
Others V. Dr. D.K. Hazra, 2017(2) ARC 678.

Section 115- Revision –Maintainability of - Against order of

Additional District Judge rejecting amendment application for
amending plaint –Revision having been filed from order passed by
appellate court rejecting amendment application filed in appeal held
to be not maintainable under Sec. 115, CPC as amended in U.P.
Remedy of revision as provided under Section 115 C.P.C. for Uttar
Predesh is from an order passed in a case decided in an original suit or
other proceeding by a subordinate court where no appeal lies against that
order. Order of Additional District Judge, passed in revision under Section
115 C.P.C. was further challenged in revision under Section 115 C.P.C.
before this Court in M/s. Jupiter Chit Fund (Pvt.) Ltd. Vs. Dwarika Dinesh
Dayal, AIR 1979 All. 218 (FB). Full Bench of this Court relying upon
earlier Full Bench decision of this Court in Har Prasad Singh Vs. Ram
Swarup, AIR 1973 All 390 (FB), held that the phrase "cases arising out of
original suit" does not include decisions of appeals or revisions. The
phrase "other proceeding" refers to the proceedings of original nature and
cannot include decisions of appeal or revision. The phrase "other
proceeding" have to be read ejusdem generis with the words original suit.
It was held that revision under Section 115 C.P.C. is not maintainable
from revisional order of subordinate court. This judgment of Full Bench
has been affirmed by Supreme Court in Vishesh Kumar v. Shanti Prasad,
AIR 1980 SC 892, holding that court is of opinion on the first question
that the High Court is not vested with revisional jurisdiction under Section
115 of the Code of Civil Procedure, over a revisional order made by the
District Court under that section.
The controversy as to whether the appellate order can be revised in U.P.
under Section 115 C.P.C. came for consideration before Supreme Court in
Vishnu Awatar v. Shiv Autar, AIR 1980 SC 1575, in which it was held
that the legislature has continued to use the phrase "cases arising out of
original suits". The interpretation placed upon this phrase by the Full
Bench in Har Prasad Singh's case (supra) will apply. The revisional
jurisdiction would hence not extend to cases arising out of the disposal of
appeals or revisions by the District Court.
In view of the aforesaid discussions, court did not find any reason to doubt
correctness of the decisions of three Full Benches of this Court as well as
Supreme Court, holding that the words "or other proceedings" have to be
read ejusdem generis with the words "original suits". They will not
include appeals or revisions. Present revision has been filed from the order
passed by appellate court rejecting amendment application, filed in appeal
as such the revision is not maintainable under Section 115 C.P.C. as
amended in Uttar Pradesh. Jagdish Narayan Tondon and others v.
Onkar Nath Tondon and others, 2017 (3) AWC 3088

S. 115 (1) (as amended by U.P. Act 31 of 2003) Revision –

maintainability – order rejecting amendment of plaint – revision not
maintainable under S. 115 against order of rejection of amendment in
plaintiff's
The decisions of three Full Benches of this Court as well as
Supreme Court, holding that the words ―or other proceedings‖ have to be
read ejusdem generis with the words ―original suits‖. They will not
include appeals or revisions. Present revision has been filed from the order
passed by appellate court rejecting amendment application, filed in appeal
as such the revision is not maintainable under Section 115 C.P.C. as
amended in Uttar Pradesh. Jagdish Narayan Tandon And 3 Others V.
Onkar Nath Tandon And 10 Others, 2017 (4) ALJ 72

O. 1, R. 10; S. 92 – Trust Act, S. 6 – Necessary party – Suit to inject

defendants from interfering with rights of plaintiff-trust to manage
disputed Dhasrmashala – Plaintiff-trust to manage disputed
Dharmashala – Plaintiff-trust only given rights to manage disputed
Dharmashala – There was thus no assignment of dharmashala to
plaintiff-trust – Dharmashala was therefore, not public trust so as to
attract S. 92 of Code – Suit filed by plaintiff-trust without impleading
Dharmashala is maintainable – Plaintiff held, entitled to injunction
prayed
In view thereof, the provisions of Section 92 of the Civil Procedure
Code would not be attracted. So far as the validity of deed Paper No. 63-
Ka dated 04.05.1991 is concerned, there is no violation of the disclosure
or declaration made by Kishan Lal heir of Seth Tulsi Ram in the
declaration deed Paper No. 158-Ga dated 07.01.1914 in as much as
passing of managerial rights to Maheshwari Kunj Nyas Trust in the
Dharmshala would not be assignment or Supurdigi of Dharmshala to the
said trust. The deed Paper No. 63-Ka dated 4.5.1991, therefore, cannot be
said to be void-ab-initio. Moreover, appellants having no right, title and
interest in the suit property cannot challenge the action of the owners in
handing over the management of Dharmshala to any other person
including the respondents.
 A person seeking injunction should show the violation or
infringement of his legal right. In a suit for perpetual injunction, the Court
may be called upon to hold enquiry to the entitlement, right, interest or
status, as the case may be, of the plaintiff to find out as to whether the
plaintiff is entitled to protection of his possession by decree of injunction.
The question of title in a matter of injunction may be incidentally gone
into. Thus, the possession of the plaintiff over the disputed property
though assumes importance but at the same time the question of
possession per-supposses lawful possession. Long continuous possession
can protect a person by seeking an injunction against any person in the
world other than the true owner. Radha Sharan Dubey V. Ram Niwas,
2017 (4) ALJ 277

O. 3, Rr. 1,2 - Evidence Act – Power of attorney holder – Power to

depose on behalf of principal – O. 3, Rr. 1,2 do not put express bar –
Even under Evidence Act power of attorney holder is competent
witness and entitled to appear as witness
The question which arises for determination before the Court is as
to whether the oral deposition of Kishan Lal Tapadia DW-1 can be ignored
only on the ground that he was only Power of Attorney Holder of the
plaintiff trust and, therefore, he had no personal knowledge of the facts
deposed.
Before dealing with this submission in the facts of the case, it
would be apt to go through the procedure as provided under Order III
Rule 1 and 2 of Civil Procedure Code. Thus it does not deal with the merit
of the evidence to be adduced in a civil proceeding as to who may testify
or depose. A careful reading of the Order III Rule 1 CPC further shows
that it does not deal with the power of the General Power of Attorney to
depose or the right of the Principal to authorize his Power of Attorney to
depose in his favour.
Further there is no prohibition under the Evidence Act for a Power
of Attorney to appear and depose on behalf of his principal. The Power of
Attorney Holder is a competent witness and is entitled to appear as such.
His evidence cannot be refused to be taken into consideration merely on
the ground that the parties to the suit i.e. the plaintiff or defendant choose
not to appear in the witness-box. Section 118 of the Evidence Act provides
the category of persons who are incapable of being witness in a legal
proceeding. The Power of Attorney does not fall in any of the said
categories.
The question as to whether the Power of Attorney has personal
knowledge about the matter in controversy is a question to be thrashed out
by cross-examining him. Thus by cross-examination of the Power of
Attorney it can be seen whether he has personal knowledge about the facts
in controversy. The evidentiary value of his deposition may be determined
after due consideration of his answer in the cross-examination. However,
his deposition cannot be thrown out simply on the ground that the
Principal did not appear and the Power of Attorney has no knowledge.
Thus the deposition of Power of Attorney with regard to such
"acts" cannot be considered and he can not be cross-examined on those
facts. In the abovenoted judgment on the facts of the said case, the Apex
Court found that the question as to whether the appellants therein had any
independent source of income and had contributed towards the purchase
of the property from their own independent income could only be
answered by the appellants (therein) themselves and not by their Power of
Attorney. Radha Sharan Dubey V. Ram Niwas, 2017 (4) ALJ 277
O.6, R.17- Amendment in plaint- Allowed by courts below-–Validity
of
The present petition under Article 227 of the Constitution of India has
been filed challenging orders dated 28th November, 2016 and 27th
February, 2017, passed in Original Suit No.901 of 2016 and Civil
Revision no.84 of 2016, respectively.
In the instant case, the plaintiff claimed that the petitioner Ashish Kumar
had held himself as Ved Prakash and when the court amin served the
summons it was discovered that he was son of late Ved Prakash.
Immediately, thereafter, the plaintiff applied for amendment/ impleadment
of Ashish Kumar son of late Ved Prakash, the petitioner herein. The
objection filed by the petitioner to the application though denies the bona
fides of the plaintiff in bringing the suit against a dead person but does not
disclose any fact which may go to show that the plaintiff had been aware
of the true identity of the petitioner or about the previous death of the
original defendant Ved Prakash. Under the circumstances, if the courts
below have recorded their satisfaction in respect of the bona fides of the
plaintiff in occurrence of the mistake, keeping in mind the alacrity with
which the plaintiff brought the amendment upon coming to know about
the true identity of the defendant, the order passed by the courts below
does not suffer from any legal error which may call for interference in
exercise of power of superintendence. The petition is dismissed. Ashish v.
D.H. Ltd. 2017 (3) AWC 2238

O. 9, R. 13-Execution proceeding-For execution of exparte decree-The

application under O.9, R.13 dismissed for non-prosecution-
Restoration of application under O.9, R. 13 pending hence objection
the execution proceeding should be suspended-Objection rejected-
Considering the application of petitioners for restoration of
application under O.9., R. 13 CPC is pending, this petition is disposed
of with observation of petitioners moves an urgency application for
consideration of the aforesaid pending application, the Court
concerned shall consider the same expeditiously, in accordance with
law.
The petitioners have suffered an ex-parte decree in Original Suit
No.130 of 1997. To set aside the ex-parte decree, it appears that
petitioners filed an application under Order IX Rule 13 CPC and from the
statement made by learned counsel for the parties at Bar it appears that the
said application got dismissed for non-prosecution and for restoration of
the said application, proceedings are pending as Misc. Case No.153 of
2016. In the meantime, an application was filed to seek execution of the
decree. In the execution proceeding, bearing Execution Case No.1 of
2014, an objection was filed by the petitioners that since application for
setting aside the ex-parte decree was pending, the execution proceeding
should be suspended.
The aforesaid submission of learned counsel for the petitioners cannot be
accepted as a matter of principle because the execution Court is bound by
the decree and unless the decree is suspended or set aside, the execution
Court has to bring the execution proceeding to its logical conclusion,
though for certain period the execution Court can suspend the execution
proceeding dependent on the facts and circumstances of the case. But,
since in this case, it appears, application under Order IX Rule 13 CPC
itself was rejected for non-prosecution and thereafter an application has
been filed for restoration of the said application, this Court finds no good
reason to interfere with the impugned orders. However, considering that
the application of the petitioners for restoration of application under Order
IX Rule 13 CPC is pending, this petition is disposed of with observation
that if the petitioners move an urgency application for consideration of the
aforesaid pending application, the Court concerned shall consider the
same expeditiously, in accordance with law.
With the aforesaid observation, the petition is disposed of. Bhrighu And
2 Others. V. Smt. Dhanesgaru And Another., 2017 (2) ARC 824.

O. 15, R. 5- Striking off defence- On account of not depositing

monthly rent during pendency of suit-Validity of
This revision has been filed against the order dated 28.1.2017 passed by
Additional District Judge (FTC), Court No. 52, Kanpur Nagar by which
the defence of the defendant-revisionist has been struck off under Order
XV, Rule 5, CPC on account of not depositing the monthly amount during
the pendency of the suit. It is not in dispute that neither on the first date of
hearing nor during the continuance of the suit any deposit has been made
by the revisionist who is admittedly a tenant of the accommodation in
dispute at the rate of Rs. 2970 per month.
The order striking off defence has been assailed on the ground that
according to the defendant a sum of Rs. 250000 had been given by way
advance rent and therefore, the same ought to have been adjusted and as
there were no admitted dues payable by the defendant to the plaintiff, the
defence could not have been struck off.
The revisionist has admittedly not made monthly deposits though he
admits the jural relationship of landlord and tenant between the plaintiff
and him at a monthly rent of Rs. 2970. He, however, claims adjustment of
Rs. 250000 alleged to have been paid in advance. As already found above
that no such adjustment is permissible in making monthly deposits, this
Court is of the view that the court below, upon finding that there has been
failure in making monthly deposits, has rightly struck off the defence. The
revision is dismissed. Krishna Kumar Gupta V. Manoj Kumar Sahu,
2017 (3) AWC 2930: 2017 (4) ALJ 127

O. 22, R. 10 r/w R. 4 & 5- Impleadment application-To be impleaded

as respondent No.4 in the appeal on basis of Will- Allowed-Original
Will not before appellate Court on which impleader claiming
devolution of interest in the suit property, hence appellate court could
not have proceeded to allow a party to be added- The issue whether a
person has a right or locus to contest a suit or appeal would go to the
root of the matter and it cannot be allowed or granted casually-
Allowing improper hence rejected.
In view of the second argument so raised, by learned counsel for
the appellant, clearly the original will deed has not been brought on record
by the respondent under which Runa Devi claims devolution of interest in
the suit property. Unless the original document was before the lower
Appellate Court, it could not have proceeded to allow a party to be added
that claiming under the plaintiff in the suit.
It would be difficult to accept the contention raised by the
respondents herein that a party would have a right to be impleaded and the
appellants would have no right to object to the same inasmuch the issue
whether a person has a right or locus to contest a suit or appeal would go
to the root of the matter and it cannot be allowed or granted casually.
In so far as the lower Appellate Court has reasoned - the objections are not
supported by affidavit by present appellants, it appears that the application
too was not supported by any affidavit and in any case for Smt. Runa Devi
to be impleaded as a party she ought to have brought on record the
original sale deed.
In view of the above, the impugned order dated 28.02.2017 is set aside. It
is left open to the respondent Runa Devi to bring a fresh application under
Order 22 Rule 10 or such other application as she may be advised, in
accordance with law, within a period of two weeks from today. If such
application is filed within the aforesaid period, the same may be dealt with
and decided as expeditiously as possible, preferably within a period of
four months therefrom, in accordance with law, including right to the
present appellants to object to the same on such grounds as they may
raise. Learned counsel appearing for the parties have stated, in the event
of such application being preferred by Smt. Runa Devi, the parties shall
not seek any undue or long adjournments and shall cooperate so as to
ensure expeditious disposal of the same.
In view of the above, with the directions and observations made above,
the instant appeal from order is allowed. No order as to costs. Ram Paras
And 4 Others. V. Smt. Gyani Devi And 2 Others., 2017 (2) ARC 816.

O. 39, R. 1-Grant of interim relief-When not be consider.

The present case granting authority did not consider the essential elements
for granting for injunction that is considering prima facie case balance of
convenience and irreparable loss or injury. Pankj Kumar V. State of
U.P. and others, 2017 (5) ALJ (NOC) 184 (All.).

O. 39, R. 1 – Specific Relief Act, S. 38 – Injunction – An equitable

relief – Person claiming injunction has to come to court with clean
hands – in claim for perpetual injunction against dispossession –
ground of.
It is noteworthy that the law of injunction is fairly well settled. The
relief of injunction is an equitable and discretionary remedy. A person
seeking injunction must have personal interest in the subject matter. An
injunction, as is well known, being an equitable remedy, the rule of equity
that a person who seeks equity must do equity, is applicable to a case in
which such an equitable remedy is prayed for. Moreover, the plaintiff
asking for such a relief should be able to show that he has come to the
court with clean hands. The law for issue of injunction as provided in the
Specific Relief Act is governed by the aforesaid principles.
A person seeking injunction should show the violation or
infringement of his legal right. In a suit for perpetual injunction, the Court
may be called upon to hold enquiry to the entitlement, right, interest or
status, as the case may be, of the plaintiff to find out as to whether the
plaintiff is entitled to protection of his possession by decree of injunction.
The question of title in a matter of injunction may be incidentally gone
into. Thus, the possession of the plaintiff over the disputed property
though assumes importance but at the same time the question of
possession per-supposses lawful possession. Long continuous possession
can protect a person by seeking an injunction against any person in the
world other than the true owner. Radha Sharan Dubey V. Ram Niwas,
2017 (4) ALJ 277

O. 39, R. 2-A- An application for dismissal of partition suit-On

ground that in proceeding under O. 39, R. 2-A CPC, the plaintiff
found to be out of possession, therefore, the suit liable to be dismissed
on principle of res-judicata-Application rejected-The suit was for
partition with a prayer to demarcate the share of plaintiff and to put
him into possession of his plot-A plaint can be rejected only if on
reading the plaint as whole either no cause of action is disclosed or the
suit is found barred by law-The Court in contempt proceeding is not
required to enter into the correctness of the order because the object
of contempt proceeding is to ensure majesty of the Court-Rejection
proper.
The aforesaid contention of learned counsel for the petitioner
cannot be accepted because the suit was for partition with a prayer to
demarcate the share of the plaintiff and to put him into possession of his
lot. Further, a plaint can be rejected only if on reading the plaint as a
whole either no cause of action is disclosed or the suit is found barred by
law. But once the plaint averments disclose a cause of action and the suit
as framed does not appear to be barred by any law then suit has to proceed
in accordance with law and only on the basis of evidence led during the
course of suit proceeding and the finding returned on the issues framed,
the suit is to be decided either way. The prayer of the petitioner that the
suit should be dismissed because finding of the plaintiff being out of
possession has been returned in proceeding under Order 39 Rule 2_A
CPC and would therefore bar any further investigation on that issue by
principle of res judicata is completely misconceived and it was rightly
rejected by the Court below, inasmuch as in contempt proceeding the
Court is required to find out whether there is breach of the order or not.
The Court in contempt proceeding is not required to enter into the
correctness of the order because the object of contempt proceeding is to
ensure majesty of the court. The aforesaid view finds support from Apex
Court decision in Coromin Match Industtries (P) Ltd Vs. State of T.N.
(1996) 4 SCC 281. Even otherwise, in a suit for partition whether the
parties are co-sharers, the possession of one would be deemed to be on
behalf of other. More over, the plaintiff has not merely sought declaration
of his share but also a decree of partition to enable him to obtain a
separately demarcated lot(Kura).
Thus, in any view of the matter the suit is not liable to be rejected, at this
stage, on the grounds taken. Accordingly, this Court is of the view that no
error has been committed by the Courts below in rejecting the prayer of
the petitioner.
The petition is dismissed. Suresh Kumar Tripathi V. Sankatha Prasad
Agrahari And 6 Others, 2017(2) ARC 829.

O. 47, R. 1- Review of judgment- Power of review – To be exercised to

remove error and for correction of mistake- But not for disturbing
finality of judgment and substituting a view
The review is also not an appeal in disguise. The merits of same judgment
cannot be reappreciated in garb of review. Power of review is exercised to
remove the error and not for disturbing the finality of judgment. The
power of review can be exercised for correction of a mistake but not for
substituting a view. The mere fact, that two views on the same subject are
possible is not ground to review the earlier judgment. Rajendra Singh v.
Chandra Pal, 2017 (3) AWC 2884

Constitution of India
Art. 226- Interference- Compassionate Appointment- Rejection of-
Ground- Delay – Compassionate appointment cannot be made if the
family has sufficient means to carry on its affairs for long time-
Reiterated that the rule of compassionate appointment has an object
to give relief in destitution and is not a provision to provide alternate
employment
Court find that petitioner applied for compassionate appointment after a
considerable time from the death of his mother and, therefore, question of
compassionate appointment does not arise inasmuch it is well settled that
if the family had sufficient means to carry on its affairs for long time, in
such a case compassionate appointment cannot be made. The purpose of
compassionate appointment is not to provide employment by succession
but it is to meet immediate necessity arrived at due to sudden demise of
sole bread earner of the family leaving the legal heirs in penury.
The purpose of compassionate appointment is not for providing a post
against post. It is not reservation in service by virtue of succession. If the
family is not in penury and capable to maintain itself for a long time, no
mandamus would be issued after a long time for providing compassionate
appointment to a legal heir of the deceased employee.
It is thus clear that rule of compassionate appointment has an object to
give relief against destitution. It is not a provision to provide alternate
employment or an appointment commensurate with the post held by the
deceased employee. It is not by way of giving similarly placed life to the
dependents of the deceased. While considering the provision pertaining to
relaxation under Rules, 1974 the very object of compassionate
appointment cannot be ignored.
In view of above exposition of law and in the facts and circumstances of
the case, court did not find any error in the impugned order warranting
interference. Razee Ullah v. State of U.P. and others, 2017 (35) LCD
2137

Criminal Procedure Code

S. 311–Recall of witnesses – Bonafide need
On hearing Criminal revision regarding application of S. 311 Cr. PC by
the Hon‘ble Court , Hon‘ble Court relied upon the decision of Hon‘ble
Apex Court Natasha Singh v. C.B.I. (State), 2013 (83) ACC 387 (SC) and
in that judgment the Hon‘ble Apex Court held that the scope and object of
the provision is to enable the Court to determine the truth and to render a
just decision after discovering all relevant facts and obtaining proper proof
of such facts, to arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or arbitrarily, as any improper
or capricious exercise of such power any lead to undesirable results. An
application under section 311 Cr.PC must not be allowed only to fill up a
lacuna in the case of the prosecution, or of the defence, or to the
disadvantage of the accused, or to cause serious prejudice to the defence
of the accused, or to give an unfair advantage to the opposite party.
Further, the additional evidence must not be relieved as a disguise for
retrial, or to change the nature of the case against either of the parties.
Such a power must be exercised, provided that the evidence that is likely
to be tendered by a witness, is germane to the issue involved and
opportunity of rebuttal however, must be given to the other party.
Kaluwa v. State of U.P., 2017 (100) ACC 809

Ss. 437, 438 – Interim bail – Application for – Pending successive bail
application for– Application ought to be listed before Judges, who is
in-charge of successive bail application
If the prayers are perused, the applicant had requested the Court to
release him on interim bail i.e. till the successive bail application is heard
and finally decided. In our views, there is a difference between interim
bail and temporary bail. Therefore, when an applicant makes a prayer to
release him for interim bail i.e. till the successive bail application is
decided, the concerned Judge has to deal with the case on merits.
Essentially it is in the nature of interim relief pending consideration of
prayer for regular bail. If an application is filed for interim bail, which
would not be for a specific period, the same would require detailed
scrutiny of evidence, therefore, in our views, it should be heard by the
Judge, who is in-charge of the successive bail application. Even
procedurally, such application for interim bail would be filed 'In' the main
application for regular bail and therefore will always tag along with such
proceedings.
However, when an accused, whose successive bail application is
pending before the High Court, files an application for releasing him on
bail for a limited period on various types of reasons, the Court has to look
into the reasons for the prayers made by the applicant for his temporary
release. There would be number of reasons for asking temporary bail such
as marriage in the family, death of relatives, etc.
When an under trial prisoner comes forward with a prayer to release him
from the judicial custody for a particular reason for a limited period, the
considerations before the Court would be different. When an application is
filed for temporary bail, the matter is not required to be argued on merits
for grant of regular bail. The Court, before whom such application for
temporary bail is placed for hearing, would examine the jail record of
accused, his behaviour in the jail, whether he is released on temporary bail
in past and his conduct during the temporary release period, police report,
etc. Therefore, when the Court finds that the cause put forward by the
accused is genuine, such application would be granted by the Court for a
limited period on appropriate terms and conditions. The criteria for
considering an application for temporary bail therefore would be different
than the application for interim bail, which is required to be decided on
merits after examining the evidence. Therefore, we answer the reference
as under:
(i) If the application is filed by an accused for interim bail in a pending
successive bail application, the same shall be listed before the Judge, who
is in-charge of successive bail application.
(ii) If temporary bail application is filed during the pendency of a
successive bail application, the same shall be placed before an appropriate
Court, as per the roster. Abhijit Prabhakar Konduskar v. State of
Gujarat, 2017 Cr.L.J. 3026 (Guj HC)(FB)

Criminal Trial
Competence of child witness – S. 118 of Indian Evidence Act –
Consideration of
Hon‘ble Court held that this is true that section 118 of Indian Evidence
Act contemplates no disqualification against the understanding of child
witness. However, it is also true that unless the competence is tested by
the Trial Judge, he/she would not be in a position to ascertain the
capability of child witness to understand the question.
The evidence of child witness cannot be rejected per se but the Court as a
rule of prudence is required to consider such an evidence with close
scrutiny. Shiv Kesh v. State of U.P. , 2017 (100) ACC 4

Whether non-examination of material witness fatal for prosecution-

Held ‗No‘
Hon‘ble Court held that the law on this point is quite clear that non-
examination of the material witness is not a mathematical formula for
discarding the weight of the testimony available on record, howsoever,
natural, trustworthy and convincing it may be. It is a settled law that non-
examination of an eye-witness cannot be pressed into service like the
ritualistic formula for discarding the prosecution case with a stroke on
pen. Court can convict the accused on the statement of a sole eye- witness
even if he is relative of the deceased and non-examination of an
independent witness would not be fatal to the case of the prosecution. The
above ratio of law has been laid down by the Apex Court in different
cases. Salig Ram v. State 2017 (4) ALJ 130

Whether Prosecution is bound to examine all the witnesses

mentioned in charge-sheet –Held ‗No‘
Hon‘ble Court held that so far as non-examination of witnesses are
concerned, it may be stated that the prosecution is not bound to examine
all the witnesses mentioned in the Charge-sheet rather it has a right of
choice to produce the witnesses who are necessary to prove the case. But
no-examination all witnesses will not make the prosecution case liable to
be thrown on this ground rather it has to be examined on the basis of
evidence and material available on the record. State of U.P. v. Girish
Pal,2017 (100) ACC 353

Court Fees Act

Sec. 7(iv) (a) & Art. 17(iii) of Schedule II- Suit for declaration of sale
deed void & permanent injunction-Court fee payable thereto-In
respect of relief seeking declaration Trial Court found Court fee is
insufficient and ad-valorem Court fee is payable in accordance with
S. 7 (iv) (a) of the Court Fee Act- Trail Court rightly answered the
issue for payment of Court fee in accordance with S. 7 (iv) (a) of the
Court Fee Act.
This First Appeal From Order filed under Section 6-A of the Court
Fees Act, 1870 read with Section 104 C.P.C. arises out of the proceedings
from O.S. No. 1361 of 2007 and is directed against the order dated
21.07.2016 passed by the Additional District Judge, Court No. 16,
Allahabad whereby the issue no. (5) in respect of the payment of court
fees has been decided against the plaintiff-appellants.
In view of the aforesaid facts and discussions, we are of the opinion that
the trial court has rightly answered the issue for payment of Court fees in
accordance with Section 7(iv)(a) of the Court Fees Act, 1870 and
committed no error of law.
From a perusal of settled proposition of law by aforesaid pronouncements,
the decree of declaration cannot be granted without declaring the sale deed
as null and void and thus the court fee is payable in accordance with
Article 17(iii) of Schedule II of the Act inasmuch as until the document is
avoided or cancelled by proper declaration, the duly registered document
remains valid and binds the parties as held by the Hon'ble Apex Court in
the case of Smt. Ramti Devi vs. Union of India, 1995 (1) SCC 198.
The appeal isthus bereft of merits and accordingly stands dismissed. Shiv
Shanker Mukherjee And 12 Others. V. Sandeep Jain And 15 Others.,
2017(2) ARC 825.

Evidence Act
S. 9 – Test Identification parade –Whether always necessary – Held,
‗No‘
Hon‘ble Court held that test identification is a device to establish the
identities of perpetrators of crime. But in this case, court find that the
identities of the assailants were not disputed and the assailants were
named in the FIR itself, and as such, holding of test identification parade
was not require. In the present case, FIR was lodged within 45 minutes of
incident disclosing identities of all the four assailants. At least two
witnesses emphatically claimed from the very beginning that they had
recognized the assailant. These witnesses have described them. In this
scenario, holding of test identification parade was not necessary. If
identities of assailants are established or prosecution is satisfied with the
available evidence regarding the identity a assailants, then there is no
necessity of holding the test identification parade. Court believe that even
in this case, there was no necessity of holding the test identification
parade as there was no dispute about identity of assailants. Trial court
rightly rejected the application for test identification. Bhairon Prasad &
Ors V. State, 2017 (4) ALJ 88

Indian Stamp Act

S. 47 A – Stamp duty- Notice to pay additional stamp duty on sale-
deed in question- Petitioner paid stamp duty on circle rate applicable
for agricultural land purchased by him- Burden of proof was on
respondents to show that said property was near residential area- But
without discharging their burden of proof and without any such
specific finding impugned order of assessments of stamp duty was
passed based on unfounded speculation and hypothesis- Impugned
order being erroneous and illegal set aside- Amount if any deposited
by petitioner after passing of impugned order was to be refunded to
him
In present case it was respondents who desired to make believe that the
disputed property is situated in a particular area (near residential area).
The petitioner had denied the existence of that property is in such area.
Therefore, the burden of proof is of proving said fact was on the
respondents, who had not given any reason in support of their finding.
This observation of respondent, through their impugned orders, was
totally perverse and unacceptable that the petitioner had failed to prove
that area which is mentioned by respondents in their notice
There is no denial of the fact that disputed property had been and is being
used for agricultural purposes, which is evident from entries of revenue
records, prepared after mutation of the name of petitioner. the respondent
No. 3 had held that petitioner had not given any evidence of prove that
said property is not situated near residential area. But this plea is against
the settled legal norms.
In such case, the burden of proof was on respondents to show or prove
that said property is near residential area. But without discharging their
burden of proof and without any such specific finding, the impugned order
of assessment was passed, which is apparently erroneous.
It is not denied that stamp-duty by petitioner was paid on circle rate
applicable for the agricultural land purchased by him. It is apparent from
perusal of record that proper stamp-duty was paid on sale-deed in question
at the time of its execution. There has been no evidence to show that any
error or irregularity has been committed in this matter on behalf of
respondents or any concealment of fact was made by him, but the
impugned orders firstly by respondent no.-3 and thereafter by respondent
no.-2 were passed on the basis of unfounded speculation, hypothesis and
by illegalities committed by them, when they have shifted their burden of
proof on petitioner at the time of passing impugned erroneous orders.
Therefore, impugned order dated 27.2.2015 passed by respondent no.-3 in
Stamp Case No.-V-03/2013D2013115200746 and the impugned judgment
dated 10.9.2015 passed by respondent no.-2 Collector, Meerut Division,
Meerut in Revision No.-4/2014-15 (Ashwani Kumar Vs. State of U.P. are
hereby set aside. Accordingly, this writ petition succeeds and is allowed.
The amount, if any, deposited by petitioner after passing of the impugned
orders shall be refunded to him immediately with interest at the rate of 8%
per annum from the date of deposition of said amount. Ashwani Kumar
V. State of U.P. and others, 2017 (3) AWC 2434

Interpretation of Statutes:
Principle of ejusdem generis
The decisions of three Full Benches of this Court as well as
Supreme Court, holding that the words ―or other proceedings‖ have to be
read ejusdem generis with the words ―original suits‖. They will not
include appeals or revisions.
The phrase ―other proceeding‖ have to be read ejusdem generis
with the words original suit. It was held that revision under Section 115
C.P.C. is not maintainable from revisional order of subordinate court.
Jagdish Narayan Tandon And 3 Others V. Onkar Nath Tandon And
10 Others, 2017 (4) ALJ 72
Land Acquisition Act
Ss. 4 (1), 5A and 17 (4)- Acquisition of land- Claim for additional
compensation and developed abadi land
This petition seeks the quashing of the order dated 23.6.2016 passed by
the Chief Executive Officer. New Okhia Industrial Development
Authority –respondent No. 3 rejecting the representation filed by the
petitioner for providing 64.70 % Additional Compensation and 10%
developed abadi land in view of the Full Bench decision in the case of
Gajraj and others v. State of U.P. and others, 2011 (11) ADJ 1 .
The issue that arises for consideration in this petition is whether the
benefit of the directions issued in Gajaraj for providing additional
compensation and land should be given to such tenure-holders also whose
lands were not acquired by the notifications under challenge in Gajarj.
The relief which was granted in Gajaraj cannot be made applicable to the
acquisition proceedings not covered by the acquisitions assailed in
Gajaraj. The petitioners are, therefore, not entitled to the relief claimed in
this petition
The impugned order, therefore, does not suffer from any illegality which
may call for interference by the court under Article 226 of the
Constitution. Baljeet and others V. State of U.P. and others, 2017 (3)
AWC 2364

Motor Vehicles Act:

Sec. 166-Constitution of India, Arts 14,21,38-Right to compensation-
Determination of-Source of income of father of deceased may have
bearing upon amount of compensation but dependence of father on
income of deceased cannot be ruled out.
 It is purpose of law that has to be weighed in accidental cases
rather than of succession whereunder principal of lineal descendence may
have its application. A statutory claim commerces as soon as a person is
injured or his death is occurred. Principal underlaying S. 306 of Indian
Succession Act, 1925, whereunder a demand or right of deceased in
respect of personal injury or grant of relief becoming nugatory as
consequence of death becomes extinct by virtue of rule of ‗action
personalis motiur cum persona‘ may not have application once the claim
devolves upon a dependent under special law, therefore, finding recorded
by Tribunal that father of deceased being employed was not a dependent
is not a correct proposition of law. Source of income of father may have a
bearing upon quantum of compensation but his dependence can not be
ruled out altogether. Smt. Vimla Devi and another V. Iffco Tokio
General Insurance Company Ltd. And another, 2017 (5) ALJ 346 All
(LB)

Motor Vehicle Rules

Rule 221- Review- Power of Tribunal – Tribunal possessed no
jurisdiction to review its decision –As such order passed by Tribunal
reviewing its decision was without jurisdiction and nullity
In the present case, an award of Rs.7,45,000/- was made on 14.01.2008 by
the Motor Accidents Claims Tribunal in favour of the claimants and the
amount was directed to be payable by the owner of the vehicle.
Subsequently, on an application for review moved by the claimants, the
Tribunal vide order dated 21.05.2009 shifted the liability to pay the
compensation from the owner of the vehicle upon the appellant-Insurance
Company.
Aggrieved by the aforesaid shifting of liability, the appellant-Insurance
Company has preferred this appeal against the order dated 21.05.2009
passed by the Tribunal.
The contention of learned counsel for the appellant-Insurance Company,
is that the Tribunal has no jurisdiction under the Motor Vehicles Act,
1988 to review its decision, therefore, the order dated 20.05.2009 is a
nullity.
The said Rules vide Rule 221 provides for the applicability of certain
provision of the First Schedule of C.P.C. to the proceedings before the
Tribunal but it does not apply the power of review as contained in the
Code of Civil Procedure to the proceedings before Tribunal.
In view of the above discussion, court also of the opinion that the
Tribunal possesses no jurisdiction to review its decision and as such, the
order dated 21.05.2009 passed by it is without jurisdiction and is a
nullity.
Accordingly, we set aside the order dated 21.05.2009 and the review
application, as filed by the claimants, stands rejected. United India
Insurance Co. Ltd. v. Rahul and others, 2017 (3) AWC 3140

Muslim Law
Issuance of 'Fatwa'
The 'Fatwa' issued by whatever body not emanating from any
judicial system recognized by law, is not binding on any one including the
person who had asked for it. Aaqil Jamil v. State of U.P.,2017 (4) ALJ
229
Provincial Small Cause Courts Act
Sec. 25 - Non-framing of issues as per procedure of CPC-Effect-Small
Causes Court is not under obligation to frame issues and record
findings on each issue separately, however, the Small Causes Court is
under obligation to consider the pleadings of the parties.
Next submission is that the court below had decided the suit without
framing the issues as per the procedure provided under the Civil
Procedure Code. The Small Causes Court is not under obligation to frame
issues and record findings on each issue separately. The proceedings by
the Small Causes Court are summary in nature, however, the Small
Causes Court is under obligation to consider the pleadings of the parties,
the evidences on record and specific findings on the issues raised therein
are required to be recorded. The suit for eviction filed by the respondents
has been decreed vide judgment and order dated 12.1.2017 with the
specific findings recorded therein that the rent of the suit premises was
30,000/- p.m. The revisionists were in arrears from July 2010 to July
2012. The notice dated 2.7.2012 terminating the tenancy was served upon
the revisionists. Despite service of the said notice, the revisionists did not
vacate the suit premises. The defence was struck off vide order dated
13.11.2014. The order of striking off defence was challenged in a revision
which is pending before this Court, however, there is no interim order
restraining the Small Caused Court to proceed with the order.
The plea taken regarding fixation of tenure of lease for a period of 15
years in ground No. 6 cannot to the aid of the revisionists for the reason
that the lease was on month to month basis. On account of default of the
revisionists, it was terminated by a valid notice which was duly served
upon the revisionists. No evidence has been brought on record nor there is
any material to dispute the assertion of the plaintiff regarding the rate of
rent, the period of default and the service of notice. In view thereof, no
infirmity is found in the findings recorded by the Small Causes Court. The
maximum period of lease agreed between the parties was subject to the
condition that the rent of the premises was paid every month regularly.
The S.C.C. Revision is found devoid of merits and hence dismissed.
Muthoot Finance Ltd. &Another V. Chandra Kant Gupta & 3
Others, 2017(2) ARC 55.

Registration Act
S. 49 – Proviso – Unregistered document affecting immovable
property – Use for collateral purpose – Unregistered lease deed
produced to claim that plaintiff is permanent lessee of suit land –
Cannot be used to prove nature of possession of plaintiff
In light of the legal position, it may be seen that in the instant case,
the contention of the learned counsel for the appellants that the
unregistered lease deed can be admitted in evidence to prove the nature
and possession of the appellants in the suit property being lessee on the
basis of the said case is wholly misplaced. Rather the ratio of the above
noted judgment of the Full Bench is that it is for the Court to decide in the
facts and circumstances of each case whether the unregistered document is
sought to be used for the purpose which can really be termed as collateral
one, distinct from the main purpose. The unregistered 1890 deed has been
produced and sought to be used by the appellants for the purpose of
establishing their title directly to the immovable property as sought to be
conveyed by the said document. The said deed, therefore, cannot be
accepted in evidence for collateral purpose i.e. as a proof of nature and
character of possession of the appellants in the suit property. Radha
Sharan Dubey V. Ram Niwas, 2017 (4) ALJ 277

SARFAESI Act
Ss. 13(8), (4), (10), (12), 38(2)(1)(b)—Sale of secured assets—Service
of 30 days‘ notice to borrower—Is mandatory—Said power of sale or
transfer cannot be exercised arbitrarily or whimsically in violation of
statutory provisions
Undoubtedly, public money should be recovered and recovery
should be made expeditiously, but it does not mean that the financial
institutions, which are concerned only with the recovery of their loans,
may be permitted to behave like property declares and be permitted
further to dispose of the secured assets in any unreasonable or arbitrary
manner in flagrant violation of statutory provisions.
Therefore, by virtue of the stipulations contained under the
provisions of the SARFAESI Act, in particular, Section 13(8), any sale or
transfer of a secured asset, cannot take place without duly informing the
borrower of the time and date of such sale or transfer in order to enable
the borrower to tender the dues of the secured creditor with all costs,
charges and expenses and any such sale or transfer affected without
complying with the said statutory requirement would be a constitutional
violation and nullify the ultimate sale. Ashok Kumar V. Authorized
Officer, Punjab National Bank, AIR 2017 All. 178

Service Law
Employment- Recovery of amount after retirement paid in excess-
Petitioner No. 1 had completed his service career and had retired
after attaining age of superannuation- His pension had already been
fixed- Excess payment was made in years 2005 and 2007 respectively
–Steps for recovery of same were initiated on 14.12.2016 –Thus,
recovery could not be held to be justified- Recovery order deserving
to be quashed- Special appeal stood allowed
In the instant case, Petitioners-appellants, who are two in numbers, are
before this Court, assailing the validity of the decision dated 24.01.2017
(Deena Nath Pandey and another vs. State of U.P. and others), wherein
learned Single Judge has refused to quash the recovery in question on
account of the fact that excess amount has been paid and the said fact has
been admitted before this Court and in view of this recovery is justified.
After respective arguments have been advanced the factual situation there
is no dispute that petitioner no.1 has completed his service carrier and has
retired after attaining the age of superannuation and his pension has
already been fixed. In reference to the petitioner no.2, he is still in
service. Excess payment was made in year 2005 and 2007 respectively
and steps for recovery of the same has been initiated on 14.12.2016.
The case in hand is squarely covered by the para meters of
aforementioned judgement, therefore, amount paid in excess, admittedly
being of year 2005 and 2007 respectively and recovery in question
admittedly being pressed in the year 2016, then the recovery cannot be
justified and accordingly, in our considered opinion, recovery order
deserves to be quashed. Deena Nath Pandey and another V. State of
U.P. and others, 2017 (3) AWC 3120

Arts.311, 309 – Constitution of India – Civil Services Regulation,

Regn. 351-A – Disciplinary proceedings – Initiation after 7 years
retirement of employee – Not permissible
In the instant case, admittedly, the petitioner had retired on
30.11.2006. There was no enquiry initiated before that date. It could be
said that for the first time when the charge-sheet was served on
27.02.2007 on the petitioner, an enquiry was initiated as according to the
Hon'ble Supreme Court in Coal India Ltd. & ors. v. Saroj Kumar Mishra
(AIR 2007 SC 1706) serving of a chargesheet is the starting point of an
enquiry. Explanation (a) to the Regulation 351-A is also clear on this point.
 Thus, the contention of the respondents that the enquiry was
initiated by an order dated 12.07.2006 does not impress us.
Further, court find from the averment made in paragraph 9 of the
counter-affidavit that the charges as have been leveled against the
petitioner were known to the respondents way back on 21.2.2002. Thus,
the argument of the respondents that they knew about the wrongs
committed by the petitioner in as late as 2006 also does not hold much
water.
Court's view that after the petitioner had retired on 30.11.2006 no
enquiry could have been initiated for an event which had taken place four
years prior to 27.2.2007 i.e. the date on which the chargesheet was served
on the petitioner as there was no enquiry pending before the retirement of
the petitioner and the charges also categorically referred to the events
which had occurred in the financial year 1998-99.
For the reasons stated aforesaid, the impugned order dated
13.12.2009 passed by the Principal Secretary, Public Works Department,
Government of U.P., Lucknow, cannot be sustained as is quashed. Gurga
Prasad Pachouri V. State of U.P., 2017 (4) ALJ 258

U.P. Recruitment of Dependents of Government Servants Dying-in-

Harness Rules:
Rule 2 (c)- Constitution of India –Article 141 – Compassionate
appointment- Denial of- On ground of petitioner being married
daughter of her decreased father and not included in definition of
family- Even an authority not party in writ petition was bound by law
laid down by High Court – View taken by District Magistrate found
to be not only arbitrary and illegal but contemptuous also- Matter
remitted to District Magistrate to decide same afresh in light of
judgment in Smt. Vimla Srivastava expeditiously
The mother of the petitioner moved an application to the District
Magistrate, Hapur on 20th January, 2016 for petitioner‘s appointment on
compassionate ground. In her compassionate ground. In her
representation, she has stated that she does not have any source of income
and she is dependent on the petitioner who is living with her. Her mother
has also enclosed the judgment of this court in the case of Smt. Vimla
Srivastva v. State of U.P. and another, 2016 (1) ADJ 21 (DB). A similar
application has been filed by the petitioner also before the district
Magistrate. The District Magistrate by the impugned order has rejected the
application of the petitioner on the grounds that under Rule 2(c) of the
Uttar Pradesh Recruitment of Dependents of Government Servants Dying-
in harness Rule, 1974 (the Rules, 1974) the petitioner is not entitled for
her appointment as under the said provision only unmarried daughter is
entitled for compassionate appointment. Insofar as the judgment of the
Court is Smt. Vimla Srivastava is concerned, the District Magistrate was
of the opinion that in the said case that petitioner was not party, therefore,
no benefit can be granted to the petitioner on the basis of the said
judgment. It is also stated that the State Government has not issued any
direction pursuant to the judgment in Smt. Vimla Srivastava‘s case.
As can be seen from the aforesaid rule, married daughter is not included in
the definition, However, vires of the said rule was challenged by a married
daughter Vimla Srivastava. The Division Bench of this court in the case of
Smt. Vimla Srivastava has considered the provisions of Rule 2 (c) of the
Uttar Pradesh Recruitment of Dependents of Government Servants Dying-
in-Harness Rules, 1974. This Court found that the word ‗unmarried‘ used
under Rule 2 (c) (iii) of the Rules, 1974 is arbitrary and has consequently
struck down the same and directed the respondents for reconsideration of
the claim of the petitioner. Smt. Vimla Srivastav, in the light of its
judgment. Smt. Shalu Sharma V. State of U.P. and another, 2017 (3)
AWC 2401

Specific Relief Act

Sec. 22 – Limitation Act – Art. 59 – Suit for cancellation of sale deed –
Consideration for – limitation – it is duty of court to examine whether
suit barred by time or not, even if plea of limitation not raised by
defendant
In the present case it is noticed that the trial court has not
conducted any such enquiry or followed the provisions of Order 32 Rule
(1) to (14) before decreeing the suit. So far as the suit being barred by
time it is necessary to look at the averments of the plaint. When the suit
was filed it was the duty of the trial court to find out as to whether the
same was within time and not barred by the provisions of Article 59 of the
Limitation Act, 1936. The law is well settled that even if the plea of
limitation is not raised by the defendant it is the duty of the court to
examine whether the suit is barred by time and if so there is a duty cast
upon the court not to proceed with the suit and dismiss it on the ground of
limitation. Chandrama Singh (Deceased) V. Phagu Ram Verma,2017
(4) ALJ 249

Sec. 34 – Title Suit – Proof of title

The relevant circumstance is that admittedly the appellants have
been collecting rent of the lease hold properties of Thakur Govind Dev Ji
Maharaj since the year 1973 under a written authority given by Anjan
Kumar Goswami, Shevait of Thakur Govind Dev Ji Maharaj. The findings
recorded by the trial court regarding the genuineness of 1860 and 1890
deeds, therefore, cannot be said to be based on assumptions and cannot be
interfered with.
All other evidences i.e. the rent receipts, telephone bills, the
register of Bhu-badha, the list of permanent lease holders of the lands of
Thakur Govind Dev Ji Maharaj, the plaint of Original Suit No. 1091 of
2002 alleged to have been filed by Thakur Govind Dev Ji Maharaj for
declaration in favour of the appellants as lessee of the suit property are not
sufficient to prove the title of the appellant. The rent deeds allegedly
executed by tenants in favour of appellants, the rent receipts issued in
favour of the tenants, receipts of the house tax and water tax of the suit
property can only be seen as the documents in support of the two lease
deeds of 1860 and 1890. As the appellants have failed to prove the lease
deeds of the year 1860 and 1890, on the question of their title, these
documents are not required to be discussed in detail as they would not
take the case of the appellants any further. Moreover, the trial court having
discussed these documents rejected the lease rent receipts filed by the
appellants which require no interference and are being affirmed herein.
Radha Sharan Dubey v. Ram Niwas, 2017 (4) ALJ 277

Sec. 38—Injunction—An equitable relief—

Person claiming injunction has to come to court with clean hands. In
claim for perpetual injunction against dispossession, possession of suit
property by plaintiff assumes importance than title, but possession has to
be lawful possession. Radha Sharan Dubey vs. Ram Niwas, AIR 2017
(NOC) 828 (All)
Statutory Provisions:
Ministry of Human Resource Development (Department of School
Education and Literacy), Noti. No. S.O. 1655 (E) Dated May 18, 2017,
published in the Gazette of India, Extra., Part II, Section 3(ii), Dated
22nd May, 2017, p. 2 No. 1466
Whereas clause (d) of Section 2 of the Right of Children to Free
and Compulsory Education Act, 2009 (35 of 2009) (hereinafter referred to
as the RTE Act), defines ‗child belonging to disadvantaged group‘ as a
child belonging to the Scheduled Caste, the Scheduled Tribe, the socially
and educationally backward class, or such other group having
disadvantage owing to social, cultural, economical, geographical,
linguistic, gender or such other factor, as may be specified by the
appropriate Government, by notification;
And whereas, the Central government is the appropriate
Government in relation to a school established, owned or controlled by the
administrator of the Union Territory, having no legislature;
And whereas, the Hon‘ble Supreme court has ordered in W.P. (C) No. 147
of 2014 that State Governments need to consider the issuance, so as to
include children living with or affected by HIV, to be notified as
belonging to a disadvantaged group under clause (d) of Section 2 of the
Right of Children to Free and Compulsory Education Act, 2009;
And whereas, the Central Government has considered the aforementioned
order of the Supreme Court;
Now, therefore, in exercise of powers conferred b y clause (d) of Section 2
of the Right of Children to Free and Compulsory Education act, 2009 (35
of 2009), The Central Government hereby notifies the Children living
with or affected by HIV as ―child belonging to disadvantaged group‖ in
respect of Chandigarh Dadra and Nagar Haveli and Daman and Diu.
Trust Act
Sec. 6 – Trust property – Meaning of – Words that property was
―dedicated for religious purpose‖ - Not lay itself sufficient to conclude
that property was trust property – The founder has parted or control
only as founder trustee is necessary to conclude that property is trust
property
A careful perusal of the pleadings of Original Suit No. 494 of 1992
makes it clear that the case pleaded by the respondents was that Seth Tulsi
Ram was a man of religious bend of mind. He had taken the land on lease
from Thakur Singpaur ji Hanuman on lease in the year 1910 for
construction of Dharmshala with an intention that his family members and
members of his caste, who used to come to Mathura Vrindavan for
religious purpose, would stay in the said Dharmshala. Though there is an
averment in the plaint that after construction of Dharmshala, it was
"dedicated" for religious purposes, however, there is no material on record
to establish that the "dedication" was to the extent that the founder namely
Seth Tulsi Ram had parted away his control and management over the
Dharmshala or he remained in control of the said property as a founder
trustee. Few words like "dedication" and "religious purposes" used in the
plaint without oral or documentary evidence in proof thereof would not be
sufficient to conclude that the suit property as per the averment in the
plaint of the suit filed by the respondents, is a trust property and the trial
court had erred in entertaining the suit or the trial court was under
obligation to determine the nature of the suit property before proceeding
to entertain the suit filed by the respondents.
For proving the suit property as a trust property, it was incumbent
upon the appellants to aver and lead evidence that a trust was created
either by expressed declaration or by any construction or implication and
further that the trust created for public purpose was of a charitable or
religious nature. Radha Sharan Dubey V. Ram Niwas, 2017 (4) ALJ
277

U.P. Panchayat Raj (Settlement of Election Disputes) Rules:

R. 3 (1) –Election petition- Prayer for quashing- Ground of- Merely
because she/Petitioner was accompanied by her counsel was not to
result in any fatal defect in presentation of election petition by her-
Writ petition being misconceived an without any merit dismissed
In the present case respondent No. 5 presented the election petition on
18.1.2016. Merely because she was accompanied by her counsel that shall
not result in any fatal defect in the presentation of the election petition by
her. The respondent No. 4 prescribed authority himself has recorded a
finding based on record that it was personally presented by the respondent
No. 5 election petitioner on 18.1.2016 and an endorsement was made by
him to register the case and to issue notices to the parties. Thus, the
judgments relied by the petitioner are clearly distinguishable and are of no
help to her.
In view of the above, the Court did not find any merit in this writ petition.
Writ petition is wholly misconceived and is, therefore, dismissed. Smt.
Shabina Bibi V. State of U.P. and others, 2017 (3) AWC 2240)

U.P. Revenue Code

Section 67- U.P. Revenue Rules, 2016- Rule 67 –Encroachment- Over
gram panchayat property- Assistant Collector concerned having
exclusive jurisdiction to exercise power to prevent any encroachment
over gram panchayat property
The petitioner claims to be a social worker and the resident of Village
Madawara, Tehsil Meharauni, District Lalitpur. His grievance is that
Khasra Plot No.1546 Kha measuring 0.1020 hectare land recorded in the
revenue records as Banzar, has been encroached by respondent no.4 to 9
and despite matter having been brought to the notice of the Tehsil
Authority, no action has been taken.
From perusal of the records, it appears that the respondent no.10, Gaon
Sabha instead of invoking the provisions of Section 122B of the erstwhile
U.P.Z.A. & L.R. Act or the provision of Section 67 of the U.P. Revenue
Code, 2006 (hereinafter referred to as 'the Code'); has filed an injunction
suit being Case No.176 of 2014 (Gram Panchayat Madavara and others
Vs. Hariram and others) on 08.12.2014, in which an interim order dated
11.02.2014 directing for status qua, has been passed by the Court of Civil
Judge (Junior Division), Meharauni, Lalitpur.
In view of the aforenoted provisions, the jurisdiction to prevent damage,
misappropriation and wrongful occupation of gram panchayat property
vests in the authority described under Section 67 of the Code.
Consequently, the appropriate remedy available to the Gram Sabha was to
invoke the provisions of Section 67 of the Code or the erstwhile
provisions of Section 122B of the U.P.Z.A. & L.R. Act.
In view of the clear provisions as aforenoted, the Assistant Collector
concerned has exclusive jurisdiction to exercise power to prevent damage,
misappropriation and wrongful occupation of gram panchayat property.
Under the circumstances and the legal position as noted above, the
petitioner may approach the Assistant Collector concerned for redressal of
his grievances who shall, after due inquiry, proceed as per provisions of
Section 67 of the Code read with Rule 67 of the Rules, 2016. It is made
clear that if, any such proceedings are initiated, the affected parties shall
be afforded reasonable opportunity of hearing by the Assistant Collector
concerned, before passing final order. Jahar Singh v. State of U.P. and
others, 2017 (3) AWC 3177

U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act

Sec. 2(2) (Explanation I) and 20 (4) –Suit- For eviction- Applicability
of Act
In this case, court have given thoughtful consideration to the submission
of the learned counsel for the petitioner. This court is of the view that in
the facts of the present case, clause (c) of Explanation I has no application
because clause (c) of Explanation I would come into play when the
landlord builds up a case that the existing building has gone out of the
purview of the Act on account of substantial addition to the existing
building thereby rendering the existing portion minor in comparison to the
whole building. Here, in this case, the plaintiff has brought suit in respect
of the second floor of the building which, according to him, was earlier
non existent and came into existence in the year 2005 and was occupied
by the defendant-tenant. The records proved that it was first assessed in
the year 2012. Admittedly, the petitioner did not continue to be tenant of
the 1st floor of the existing building because, according to his own case,
the petitioner surrendered possession of the first floor though retained
possession of the second floor of the building. Therefore, once it was
proved from the quinquennial assessment record that the second floor of
the building (i.e. the third floor if ground floor is counted as first) was a
new construction, which was noticed and assessed for the first time in the
year 2012, and was separately possessed by the tenant-petitioner in
contrast to the other two floors which were separately occupied by the
landlord-owner, the accommodation in dispute was out of the purview of
the Act by virtue of the proviso to clause (a) of Explanation I of sub-
section (2) of section 2 of the Act. Under the circumstances, the test laid
in clause (c) of Explanation I was not required to be applied. Accordingly,
the findings returned by the courts below that the accommodation in
dispute was not within the purview of the Act as it was constructed after
26th April 1985, cannot be faulted. Jitendra Kumar V. Amit Kumar,
2017 (3) AWC 2234

Ss. 12 & 16- Declaration of vacancy of an accommodation in dispute

released thereafter by Courts below-Vacancy cannot be declared on
the application given by landlord, after more than 12 years-Plea of-
Held-Release application cannot be treated to be barred by limitation
even if the same presented after more than 12 years from the date
person has entered into an unauthorised occupation of the premises
covered by the Act- No limitation provided under the Act for
initiation of release proceedings as held in Arun Kr. Joseph‘s case
reported in 2013(2) ARC 864-Allowing of release application proper.
By impugned order dated 15.12.2011, the Rent Control and Eviction
Officer, Kanpur Nagar declared an accommodation comprising one room,
a small kitchen and gallery situated on the ground floor of House No.
61/129 vacant. Whereas by impugned order dated 22.03.2012, the Rent
Control and Eviction Officer released the said premises in favour of
landlord-respondent Anil Kumar Gupta. And by impugned order dated
12.01.2017 the Additional District Judge, Court No. 11, dismissed the
Rent Revision No. 26 of 2012 filed by Smt. Ramapati, who is now
represented by her son Suresh Kumar Maurya (the petitioner), against the
order of release as well as declaration of vacancy.
The facts over which the petitioner does not raise any dispute are: (a) the
original tenant of the accommodation in dispute was one Sheetalu Kacchi;
(b) that in 1978 Sheetalu Kacchi left the premises; and (c) that, Smt
Rampati (predecessor-in-interest of the petitioner)., has been in possession
and had also paid rent to one of its co-owners, with effect from
01.01.1978 and, thereafter, the rent had also been deposited under Section
30 of the U.P. Act No. 13 of 1972.
In the instant case, it has been found by the courts below that the original
tenant of the premises was Sheetalu Kacchi, who has unauthorisedly
transferred possession to the predecessor-in-interest of the petitioner,
without an order of allotment, and it has not been proved that the
petitioner had been in occupation of the premises, with the consent of the
landlord since before 05.07.1976, therefore the benefit of section 14 of the
U.P. Act No. 13 of 1972 was not available, hence the declaration of
vacancy cannot be faulted.
Once it is established that the predecessor in interest of petitioner was an
unauthorized occupant, she would at best be in the category of a
prospective allottee and has therefore no right to oppose or contest the
release application of the landlord and as such she has no right to
challenge the release order.
For the reasons detailed above, this Court finds that there is no merit in
the present petition and the same is therefore dismissed. Suresh Kumar
Maurya V. Smt. Hiramani Gupta And 3 Ors., 2017 (2) ARC 574.

Section 21 (1) –Release application – On the ground of bona fide

need- Allowed by courts below- Courts below had returned
concurrent findings in regard to comparative hardship in favour of
landlady- No ground found to interfere with order impugned
This Court finds no legal defect in the proceeding under section 21(1)(a)
of U.P. Act No. 13 of 1972 on the ground of any alleged defect in the
notice. In so far as the question of bona fide need is concerned, there is no
serious challenge to the finding returned by the trial court as well as the
appellate court that the accommodation already in possession of the land
lady, where she was residing with her family of four members along with
her father-in-law, mother-in-law, widowed jethani and her children, was
insufficient. The courts below have found that there were only four rooms
for that large family and accordingly the need for the premises in dispute
was found bona fide. Moreover, this Court is of the view that no one can
be forced to live in a joint family when a person has her own
accommodation and wants separate living. Under the circumstances, this
Court is of the view that the finding returned by the courts below on bona
fide need of the land lady requires no interference.
As regards comparative hardship, no submission has been advanced and
both the courts below have returned concurrent finding in that regard in
favour of the land lady.
Consequently, this Court finds no good reason to interfere with the orders
impugned and therefore the prayer of the petitioner to set aside the orders
impugned is rejected.
In view of the above, this petition is disposed of by holding that no good
ground has been made out to interfere with the orders impugned and
therefore, the prayer of the petitioner to set aside the impugned orders is
hereby rejected. Lakshmi Shankar Mishra v. Smt. Vineeta Richhriya,
2017 (3) ACC 2933

Sec. 21(1) (a)- Release application-For residential need-Allowed by

Courts below the desire of the landlady to live in city with her
daughter to avail better medical facility and to ensure that she is
looked after amounted to bonafide need-Comparative hardship also
in favour of landlady because of her advance age and more so because
the defendant/tenant not brought on record any material to show
tenant made any efforts to search for an alternative accommodation-
Allowing of release application proper, time to vacate on conditions
allowed.
Both the courts below allowed the release application by holding that the
desire of the landlady to live in the city with her daughter to avail better
medical facility and to ensure that she is better looked after amounted to a
bonafide need and, therefore, the validity of adoption was inconsequential.
As regards validity of the proceeding in view of the bar imposed by the
proviso to section 21(1)(a) of the U.P. Act No. 13 of 1972, the court
below took the view that as already three years had passed before passing
of the release order, the proviso would not come in the way of the Court to
direct release of the accommodation and, in any case, the proviso applies
to a new landlord. In addition to above, the courts below found that the
comparative hardship was also greater for the landlady because of her
advanced age and more so because the defendant-tenant had not brought
any material on record to show that during the pendency of the release
application, any effort was made by him to search for an alternative
accommodation.
It was landlady‘s specific case that except for the accommodation in
dispute she had no other accommodation in the city and therefore she
bonafide required the accommodation in dispute. There is no specific
challenge to the claim of the landlady that she has no alternative
accommodation in the city. Under the circumstances, the need disclosed
was not merely to benefit her married daughter but was her own personal
need. It is a matter of common knowledge that old parents have a desire to
live with their children to ensure that there old age blues are taken care of.
Such a need connot be said to be a frivolous desire or wish but has to be
accepted as a bonafide need. Such need has been recoginsed as a bona fide
need by the Apex Court in the case of Siddalingamma vs. Mamtha
Shenoy: 2002 SCFBRC 17: 2001(8) SCC 561. Further, the court below
has found that the alleged daughter of the landlady, namely, Zakia, was
shown as daughter of the landlady in her high school certificate, which
was obtained much prior to the filing of the release application, suggesting
that Zakia had been treated as daughter by the landlady since much before
the filing of release application and it was not a case where a false case
was developed only for the purpose of seeking release. According, this
court is of the view that the finding returned by the court below that the
building was bona fide required by the landlady for her stay in the city
with her daughter is not liable to be interested with.
Accordingly, this petition is disposed of by affirming the judgment and
orders passed by the courts below subject to the observation that for a
period up to 31st August, 2017, the petitioner shall not be evicted from the
premises in dispute pursuant to the release order provided the petitioner
by 31st May, 2017 furnishes an undertaking along with an affidavit in the
Court of Prescribed Authority, Allahabad that he shall handover vacant
and peaceful possession of the premises in question to the landlady-
respondent on 01st September, 2017. In addition to above, he shall, by 31st
May, 2017, deposit the entire admitted rent payable up to 31st August,
2017 in the court or Prescribed Authority, which the landlady would be
entitled to withdraw.
It is made clear that if by 31st May, 2017 the aforesaid undertaking is not
furnished before the Court of Prescribed Authority, Allahabad or the rent
as indicated above is not deposited, then the release order shall become
executable forthwith. It is also made clear that if by 01st September, 2017
the petitioner fails to handover vacant and peaceful possession of the
premises in question to the landlady-respondent despite undertaking, it
would not only be open to the landlady-respondent to execute the release
order but she may also initiate proceeding against the petitioner for
contempt of Court. Anwar Alam V. Smt. Raisa Bano, 2017 (2) ARC
585.

Sec. 21(1)(a)- Common release application-Against two tenants-

Maintainability of-Singular includes plural-There is no prohibition
under the Act in respect of filing a common petition for release of two
or more tenants in occupation of different tenants-Release
application maintainable-Explained.
Sec. 21(1)(a)-Comparative hardship-Release application-For need of
unemployed son of landlord-Allowed by Courts below-Need bonafide-
While deciding the release application if can always party reject the
release application on facts of each case by examining comparative
hardship separately for each tenant even in a common application-No
efforts by tenants to search alternative accommodation during
pendency of release-Allowing of release application proper.
The first submission of the learned counsel for the petitioners that there
cannot be a common release application against two separate tenements,
under separate tenancies, cannot be accepted because it is well settled in
law that singular includes plural. Moreover, it has already been held by
this court in Jagdish Chandra Yadav’s case that there is not prohibition
under the Act in respect of filing a common petition for release of two or
more tenements in occupation of different tenants.
In the present case, the need set up by the landlord-respondent was to set
up a consultancy establishment with two rooms, one for consultation and
the other to provide waiting area for the clients. The need was therefore in
respect of both the tenements and as such common question of law and
fact was involved.
The contention that the scheme of the Act, comparative hardship of each
tenant has to be considered therefore there cannot be common release
application against two separate tenants, cannot be accepted because while
deciding the release application if the court can grant partial release to
fulfill need of the landlord it can always partly reject the release
application on the facts of each case by examining comparative hardship
separately for each tenant even in common application.
In the present case, the learned counsel for the petitioner has failed to
show that any prejudice was caused to the petitioners by joint
consideration of the question of comparative hardship, particularly
because the issue has been decided against the petitioners on the ground
that despite long pendency of the proceeding then had failed to disclose
that any efforts were made by them to search for alternative
accommodation.
In the instant case, the release proceedings had remained pending for
nearly six years but noting was brought on record to demonstrate that any
effort was made to look/arrange for an alternative accommodation, under
the circumstances the view taken by the court below that the scale of
comparative hardship titled in favour of the landlord calls for no
interference.
This petition is therefore disposed of by holding that no good ground has
been shown to set aside the judgment and orders passed by the courts
below and therefore the prayer to set aside the impugned orders is
rejected. However, it is provided that the petitioners shall not be evicted
from the premises in dispute pursuant to the release order till 30th
November 2017 provided the petitioners, by 15.07.2017, furnish an
undertaking along with an affidavit in the court of prescribed authority
concerned that they shall handover vacant and peaceful possession of the
premises in question to the landlord-respondent on 1st December, 2017. In
addition to above, the petitioners, to avail the benefit of this order, shall
also deposit admitted rent in advance for the period up to 30th November
2017 by 15.07.2017. Harun Ali and Anr. V. Shri Navjeewan, 2017(2)
ARC 668.

U.P. Zamindari Abolition and Land Reforms Act.

Sec. 198(4) Cancellation of land-Ex parte order-Ground.
The Additional District Magistrate, Etawah vide his order dated
19.07.1997 rejected the claim set up by Ram Das on the ground that his
father already had twenty two bighas of land in the village concerned as
per the report submitted by Tehsil authorities dated 05.08.1996. However,
from the report submitted by Tehsil authorities it was evident that the
petitioner was son of Up-Pradhan of the village concerned at the time
when the land was allotted to him and no permission under Section 29-C
of the U.P. Panchayat Raj Act, 1947 was obtained for allotment of land to
the son of Up-Pradhan who lived with him at the time of the said
allotment.
 Moreover, it was on record that Up-Pradhan concerned had more than
twenty bighas of land and as such, petitioner could not be said to fall in
the categories mentioned in the order of preference under Section 198 of
the Act, 1950. The Patta made in favour of the petitioner was after
ignoring the several eligible persons available under category - (c) of
Section 198 (1) only on the ground that the petitioner had undergone
sterilization operation. It was found on perusal of the record that no
documentary evidence with regard to the eligibility under family planning
programme for grant of agricultural Patta ignoring the order of preference
given under Section 198 (1) was also available on record.
The order impugned had been passed in violation of limitation prescribed
for initiation of proceedings under Section 198 (6) it must be remembered
that the petitioner was, admittedly, son of Up-Pradhan and did not fall
under any of the categories of eligibility in the order of preference given
under Section 198 (1) of the Act.
True, it is so, as per the language of the U.P. Z.A. & L.R. Act 'any other
person' may be considered; but his case could have been considered only
after specific report was made to the effect that no person of sub-
categories (a), (b), (c) or (d) were available in the village concerned and
there had been never any such report by the Tehsil authorities concerned.
This Court is of the considered opinion that as and when it came to the
notice of the authority concerned that allotment of land of Gaon Sabha
had been made illegally to ineligible person ignoring the rightful claim of
several others of the same village who came within the eligibility
zone/order of preference given under sub-section (1) of Section 198 of the
Act, the authority concerned was duty bound to set up an inquiry and take
action as legally permissible to remedy the wrong. Hence, the allotment
order being ex-facie illegal, even if the suo motu inquiry was set up by the
Revenue Authority and action taken thereafter to correct the wrong could
be said to be a bit delayed, this Court would not interfere and set aside
such an order as it would revive the illegal allotment made in favour of the
petitioner.
The allotment of the petitioner was a result of nepotism and corruption
amounting to fraud played upon the Statute. Each day passing with the
allotment of petitioner over the land in question continuing a fresh cause
of action would arise. Being a continuing cause of action of which suo
motu cognizance was taken by the Additional District Magistrate, it
cannot be said to be an illegal or arbitrary exercise of jurisdiction by the
Revenue Authorities. Bharat Singh V. Addl. Commissioner and
others., 2017 (5) ALJ 338.

Ss. 331, 229-B – Civil P.C. - S. 9 – Jurisdiction of court – Suit for

cancellation of gift deed – Agricultural land – Revenue court has
jurisdiction to try suit – Civil court's jurisdiction is barred
In the present case no relief of declaration of ownership of
agricultural land specifically sought in plaint, but in essence the claim of
plaintiff was based on his ownership right of the disputed land, while the
plea of defendant was that plaintiff was not owner of the property. Then
adjudication of title of land in substance was the main question involved
in the suit, although, it was not expressly prayed for in plaint. Therefore,
in substance, when the main question involved for adjudication in this
case relates to declaration of right or title then suit would lie in revenue
court and not in civil court. Therefore, in such matter the jurisdiction of
civil court is barred under Section 331 of UPZA & LR Act. This provision
of Section 331 is attracted when in substance main question to be
determined for resolving dispute between parties relates to declaration of
rights or title of agricultural land.
In fact for an adjudication of an issue relating to jurisdiction the
averments contained in the plaint have to be taken in their entirety. The
effort of the court has to be to gathered from the pith and substance of
what is alleged in the plaint. The pith and substance of the plaint in the
instant case necessarily involved the adjudication of the question as to
whether the plaintiff was or not the co-bhumidhar of the land in dispute.
The plaintiff was not recorded in the revenue papers and the entry stood in
favour of the defendants. Obviously, therefore, the plaintiff had to seek a
declaration in his favour. Moreover, the absence of the names of the
plaintiff in the revenue record necessitates an action for declaration on the
part of the plaintiff because the entries may not be set right without such
declaration being asked for and given as contemplated under Section 229-
B of the U.P. Zamindari Abolition and Land Reforms Act. There can be no
escape therefore, from the conclusion that upon the cause of action set up
in the plaint, the suit would lie for declaration in the revenue court under
Section 229-B of the U.P. Act No.1 of 1951. Banshidhar V. Sheela Devi,
2017 (4) ALJ 177

Wakf Act
Ss. 51, 52 and 85 –Code of Civil Procedure, declaring sale-deed to be
void –Held, that civil court had no jurisdiction to entertain suit-
Finding arrived at by Additional District Judge held to be erroneous
in law
The sole question for consideration before this Court is as to whether the
suit as was filed by the plaintiff was maintainable in the civil court. The
admitted case of the plaintiff was that the property was one which had
vested in a Waqf and so alienating it without the sanction of the Board
would render the sale-deed woid. When such was the case then in the
event of an illegal sale-deed being executed the board could have taken
recourse to the procedure as was prescribed under Section 52 of the Waqf
Act, 1995. Section 52 is the remedy which is available to the Board. A
bare reading of Section 85 of the Act, makes it clear that no suit lay in a
civil court. In view of what has been stated above, it can safely be said
that the finding arrived at by the Additional District Judge, Kanpur Nagar,
is errouneous in law. The civil court had not jurisdiction to entertain the
suit. Smt. Shakeela Khatoon V. Jangle Wali Masjid Waqf No. 277
and another, 2017 (3) AWC 2772
Words and Phrases
‗Aggrieved person‘ –Includes man against whom decision has been
pronounced, wrongly depriving him of something or refusing
something or affecting his title to someone
Normally a ‗person aggrieved‘ must be a man who has suffered
legal grievance, a man against whom a decision has been pronounced
which has wrongly deprived him of something or wrongfully refused
something or wrongfully affected his title to someone. Smt. Meenu
Pathak V. Revisional Authority/Dy. Commissioner, Stamp, AIR 2017
All. 132
Word ‗due process of law‘—
Means to person should be condemned unheard—Due process of
law requires that court should adjudicate rights of parties. Radha Sharan
Dubey vs. Ram Niwas, AIR 2017 (NOC) 828 (All)

Word ―elected‖—Meaning
The question requiring adjudication is whether the term ‗elected‘
can be confined to the process of election by ―casting of votes‖ or here the
word ‗elected‘ is wide enough to cover other modes, manners and ways
also. The Act 1860 or a General Clauses Act or any other statute, pari
material with the statute in question so as to throw light in a particular
manner.Ram Chandra Mission V. State of U.P., AIR 2017 (NOC) 688
(All.)

Expression ‗usurpation of office‘ – meaning of – one who is ineligible

to hold office on account of any statutory disqualification having been
incurred even after entering office.
The first issue is as to when a writ of quo warranto would lie so as
to construe that the holder of a public office has been continuing in office
by way of usurpation. This issue is no longer res integra and the word
'usurpation' clearly means holding a public office by a person in violation
of statutory provisions or one who is ineligible to hold the office on
account of any statutory disqualification having been incurred even after
entering office. The right to hold public office has a permanency, but the
public has also the right to complain of the unlawful occupancy of a
public office by a person who is either ineligible or is disqualified. The
continuation in such an office gives rise to a cause for invoking a writ of
quo warranto and it is for this reason that the law of limitation and laches
is otherwise not generally applied when a writ of quo warranto is filed.
The existence of ineligibility and disqualification is therefore not subject
to any limitation for the exercise of jurisdiction to invoke a writ of quo
warranto. The word 'usurpation' or the phrase 'usurpation of office'
therefore has to be understood in the aforesaid context and not as a mere
grabber of office. A person who has been occupying an office without
following the due procedure of law which is not a mere irregularity,
therefore renders such continuance invalid as it is illegal. It is well-known,
particularly in service jurisprudence, that irregularities can be cured but
illegalities cannot be endured. A writ of quo warranto need not be an
immediate challenge and can be invoked even at a later stage. If an
appointment at it's inception has been accepted, the same cannot be a
ground to denude the authority of this Court under Article 226 of the
Constitution of India to refrain from exercising such authority of issuance
of a particular writ to rectify an error. This presence of power through a
prerogative writ therefore has been engrained in the Constitution to
preserve and protect the rule of law and to observe that unlawful
occupancy of an office should not be continued even if it is found to be in
violation of a statutory provision. However, this is a peculiar writ which
also has to be exercised with discretion. Dr. Kamal Jaiswal V. Union of
India thru. Secy. Ministry of HRD, 2017 (4) ALJ 229
 LEGAL QUIZ
Q.1 जहॉ यथा स्थथति आदे श के अनऩ
ु ाऱन के लऱए ऩलु ऱस सहायिा अन्िर्गि धारा
151 सी.ऩी.सी. प्रदान की र्यी हो वहा ऐसी ऩलु ऱस सहायिा ऩर होने वाऱा व्यय क्या
सम्बस्न्धि ऩऺकार द्वारा वहन ककया जायेर्ा? या तनिःशल्
ु क रूऩ में उसे ऩलु ऱस सहायिा
प्रदान की जायेर्ी।

Ans. Pertaining to the bearing of expenses of Police Aid wherein the Civil
Court U/s. 151 CPC has allowed the application of police Aid.
It is stated that police held is an extra ordinary measure or procedure to
implement the execution of the order. In other words, it is to be regarded as an
extreme step where the court is convinced of the existence of a grave
emergency. As a General Rule the expenses of the Police Aid or help in carrying
out the execution of an injunction order passed by a civil court is on a party
who has applied for the same. However, there can be an exception to it and a
decision to this effect will have to be taken keeping in view all the facts and
circumstances of a particular case –
AIR 1995 BOM 61- Ratna Bai v. Stwa Rao,
AIR 2004 Bom 225- Neerabai J. Patil v. Narayan D. Patil,
AIR 2002 Cal. 91 –STP Ltd. v. Nirmal Jeet Singh

Q.2 Whether u/s 372 of the Indian Succession Act 1925 the succession can
be granted for bank locker also?

Ans. Hon’ble Calcutta High Court, Hon’ble Chhatisgarh High Court & Hon’nle
Madhya Pradesh High Court in the following cases have held that for access to
Bank locker or to receive ornaments kept in safe deposit locker in the Bank,
same not being a debt or security within meaning of S. 372, Succession
certificate cannot be granted.
AIR 1982 Cal 92; State Bank of India v. Netai Ch. Porel (DB)
AIR 2007 Chh 36; Bimla Devi v. Shobha Wali
 AIR 1997 MP 196; Sharda Chopra v. State Bank of India

Q. 3 ररहाई के सम्बन्ध में हाई कोर्ग के “Bail Order” में यदद Clerical Errorहो र्यी
िो उसके आधार ऩर क्या ररहाई रोकी जायेर्ी या नही। इस सम्बन्ध में यदद कोई
Ruling/Circular Orderहो िो कृऩया अवर्ि कराने का कष्र् करें ।

Ans. Hon’ble High Court of Judicature at Allahabd (D.B.) in Cri. Appeal No.
1472/2005 decided on 12.9.2012 and cautioned the Trial Court to avoid
unnecessary harassment of litigants in criminal matters. This position was
reiterated by Hon’ble High Court in Cri. Mic.Application No. 8724 of 2013 in
which general directions were issued to magistrate in this regard.

The Hon’ble High Court of Judicature at Allahabad had also issued on 16.1.2013
Circular letter in pursuance of the order passed by (D.B) as mentioned above. In
circular letter No. 16124/Adm. “G-II” dated Allahabad 2.12.2013 in which the
Hon’ble Court expressed its extreme displeasure on the unnecessary
harassment of the litigants in criminal matters on account of typing mistake
which occurred in the order of the Hon’ble Court if otherwise the case and
parties may be located with other given particulars. In this circular letter the
judgment of Hon’ble Court in Cri. Misc. Case no 3680/2013 (titled Musibat Ali
and others v. State of U.P. and others) was circulated among judicial officers.

Q.4 Is the benefit of Section 4, Probation of Offenders Act, 1958 Available

to convict u/s 419 & 420 of I.P.C.?

Ans. The benefit under Sec. 4, Probation of Offenders Act, 1958 should not
be given to a convict for committing offences under Sections 419 &420 I.P.C. in
view of the law laid down by the Hon’ble Supreme Court. The Hon’ble Supreme
Court in Nilgiris Bar Association v. R.K. Mahalingham and another, 1998 Cr.LJ
675, held that the crime committed under Sections 419, 420 IPC should be
detterently dealt with and consequently set aside the order releasing convict
on probation. The Hon’ble Supreme Court again in A.S. Krishnan & others v.
State of Kerala, 2004 Cr.LJ 2833, observed that the offences committed u/s
420, 120-B, 201 & 471 r/w S. 34 deserve deterrent punishment in the larger
interest of society and the plea relating to extending benefit or S. 4 Probation
of Offenders Act, 1958 was not allowed.