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IMPORTANT DECISIONS
 Affidavit - Notary before whom sworn not examined - Not a proof in accordance with law - No reliance can be placed thereon. 2009(3) Apex Court Judgments 550 (S.C.)
Arbitration award - Courts do not interfere with the conclusion of the arbitrator even with regard to construction of a contract, if it is a possible view of the matter. 2009(3) Apex Court Judgments 609 (S.C.)
Consumer - Buyer of goods or commodities for 'self consumption' in economic activities in which they are engaged would be consumers as defined in the Act. 2009(3) Apex Court Judgments 440 (S.C.)
Divorce by mutual consent - It is Supreme Court only which can waive waiting period of six month. 2009(3) Apex Court Judgments 597 (S.C.)
Enmity - Not a ground for considering probation. 2009(3) Apex Court Judgments 548 (S.C.)
Eye witness - No attempt made to save live of deceased from the clutches of accused - Abnormal conduct - Not a ground to disbelieve and discard testimony. 2009(3) Apex Court Judgments 445 (S.C.)
Illegal gratification - Taking pecuniary benefit not an offence - For an offence it must be proved that he did so by abusing his position as public servant or holding office as a public servant. 2009(3) Apex Court Judgments 623 (S.C.)
Insurance claim - Second surveyor - Cannot be appointed as a matter of course - In case of inherent defects in report and if it is found to be arbitrary, excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. 2009(3) Apex Court Judgments 566 (S.C.)
Limitation - Statement or concession - Cannot override a mandatory statutory provision. 2009(3) Apex Court Judgments 591 (S.C.)
Matrimonial proceedings - Court can allow medical examination of a party. 2009(3) Apex Court Judgments 590 (S.C.)
Misappropriation of any gift made to the bridegroom or his parents - Whether in accordance with any custom or otherwise - Not an offence u/s 406 IPC. 2009(3) Apex Court Judgments 532 (S.C.)
Murder - Person whose shop was nearby not examined - Lantern in the light of which accused was identified not seized - Destructive of the substratum of the prosecution story - Accused acquitted. 2009(3) Apex Court Judgments 469 (S.C.)
No incriminating material put to accused in his statement u/s 313 Cr.P.C. - Conviction cannot be sustained. 2009(3) Apex Court Judgments 562 (S.C.)
Partition - Preliminary decree passed - Final partition proceedings are not subject to any period of limitation. 2009(3) Apex Court Judgments 475 (S.C.)
Partition/Separation - Where co-sharers divide it among themselves by metes and bounds it is partition - In case only one out of many co-sharers wants to get his share separated and others continue to remain joint then there is only a separation of one of the co-sharers. 2009(3) Apex Court Judgments 475 (S.C.)
Place of marriage - Nothing to do with an offence u/s 498-A IPC. 2009(3) Apex Court Judgments 532 (S.C.)
Pleadings - Amendment - Commencement of trial - O.6.R.17 proviso must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. 2009(3) Apex Court Judgments 528 (S.C.)
Public servant - Sanction for prosecution - Ceased to be a public servant - Sanction is not required u/s 19 of Prevention of Corruption Act whereas u/s 197 Cr.P.C. sanction for prosecution is required. 2009(3) Apex Court Judgments 623 (S.C.)
Rent & Eviction - Appeal - Stay of eviction order - Can be granted on payment of higher rent than contractual rent - Status quo ante to be restored in case appeal is accepted and tenant is entitled to get back the amount paid in excess of contractual rent - Such payment should not ordinarily be paid to the landlord - Deposited amount alongwith accrued interest to be paid after final disposal to either side - Court can order payment of such amount to landlord but same should be on terms so that in case the final decision goes in favour of tenant the payment should be made to him without any undue delay or complications. 2009(3) Apex Court Judgments 495 (S.C.)
Rent & Eviction - Non residential building - Bona fide requirement - Landlord having another non residential building - Can seek eviction if building occupied by his is not sufficient and suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to commence or that the shifting of his business has become inevitable. 2009(3) Apex Court Judgments 453 (S.C.)
Statutes - Interpretation - Heading or marginal note - Can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. 2009(3) Apex Court Judgments 460 (S.C.)
Written statement - Amendment - Admission - Can be explained by amendment even by taking inconsistent pleas or substituting or altering defence. 2009(3) Apex Court Judgments 528 (S.C.)
SUBJECT INDEX
Arbitration Act, 1940
Arbitration Act, 1940, S.30 - Arbitration award - Setting aside - The words "no award shall be set aside" in S.30 mandate the courts not to set aside the award on the ground other than those specified in S.30 of the Act. 2009(3) Apex Court Judgments 609 (S.C.)
Arbitration Act, 1940, Ss.30, 33 - Arbitration award - Setting aside - Courts do not interfere with the conclusion of the arbitrator even with regard to construction of a contract, if it is a possible view of the matter. 2009(3) Apex Court Judgments 609 (S.C.)
Arbitration Act, 1940, Ss.30, 33 - Arbitration award - Setting aside - View of arbitrator a possible view but not the only correct view - Held, award cannot be examined by Court and Court has no jurisdiction to substitute its own evaluation of the conclusions of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties - By purporting to construe the contract Court cannot take upon itself the burden of saying that this was contrary to the contract. 2009(3) Apex Court Judgments 609 (S.C.)
Arbitration Act, 1940, Ss.30, 33 - Arbitration award - Setting aside - (i) In a case where an arbitrator travels beyond the contract, the award would be without jurisdiction and would amount to legal misconduct and because of which the award would become amenable for being set aside by a Court; (ii) An error relatable to interpretation of the contract by an arbitrator is an error within his jurisdiction and such error is not amenable to correction by Courts as such error is not an error on the face of the award; (iii) If a specific question of law is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law does not make the award bad on its face; (iv) An award contrary to substantive provision of law or against the terms of contract would be patently illegal; (v) No award of compensation in case of breach of contract, if named or specified in the contract, could be awarded in excess thereof; (vi) If the conclusion of the arbitrator is based on a possible view of the matter, the court should not interfere with the award; (vii) It is not permissible to a court to examine the correctness of the findings of the arbitrator, as if it were sitting in appeal over his findings. 2009(3) Apex Court Judgments 609 (S.C.)
Arbitration Act, 1940, Ss.30, 33 - Liquidated damages - Clause in agreement - Held, once the arbitrator held that that clause of the contract was not applicable on the facts and circumstances, then there can be no question of any liquidated damages. 2009(3) Apex Court Judgments 609 (S.C.)
Arbitration and Conciliation Act, 1996
Arbitration and Conciliation Act, 1996, S.7 - Arbitration agreement - To understand and construct the various clauses of an arbitration agreement, Court may not depend only on the text but context as well in order to fully comprehend the context and the meaning of the clause. 2009(3) Apex Court Judgments 460 (S.C.)
Arbitration and Conciliation Act, 1996, S.11(6) - Arbitration agreement - Clause in agreement having no application to an agreement which is entered into between the appellant and the respondent - Appointment of arbitrator, held, improper. 2009(3) Apex Court Judgments 460 (S.C.)
Civil Procedure Code, 1908
Civil Procedure Code, 1908, S.11 - Res judicata - Applies to civil suits - However, doctrine of res judicata or the principle of res judicata is applied since long in various other kinds of proceedings and situations. 2009(3) Apex Court Judgments 574 (S.C.)
Civil Procedure Code, 1908, S.11 - Res judicata - If an earlier judgment has to operate as res-judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed on record in the subsequent proceedings. 2009(3) Apex Court Judgments 574 (S.C.)
Civil Procedure Code, 1908, S.11 - Res judicata - Question of title decided in a suit for injunction - If there was incidental finding on title the same does not operate as res judicata - However when title was directly in question, unless it is established, that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief of injunction was found or based on the findings of title. 2009(3) Apex Court Judgments 574 (S.C.)
Civil Procedure Code, 1908, S.11 - Res judicata - The Principle of res-judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res-judicata on that issue is directly applicable - When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. 2009(3) Apex Court Judgments 574 (S.C.)
Civil Procedure Code, 1908, S.100 - Second appeal - Final relief at the stage of admission stage - Cannot be granted in second appeal. 2009(3) Apex Court Judgments 459 (S.C.)
Civil Procedure Code, 1908, S.151, Hindu Marriage Act, 1955 - Matrimonial proceedings - Medical Examination - Court can allow medical examination of a party to satisfy itself as to whether a party before it suffers from mental illness or not in exercise of its power u/s 151 CPC in absence of any such provision in any of the statutes. 2009(3) Apex Court Judgments 590 (S.C.)
Civil Procedure Code, 1908, O.6.R.17 - Proviso - Amendment - Commencement of trial - Issues not framed, document not filed and evidence not adduced - Held, proviso to O.6.R.17 is not applicable as the trial has not yet commenced. 2009(3) Apex Court Judgments 528 (S.C.)
Civil Procedure Code, 1908, O.6.R.17 - Proviso - Commencement of trial - Proviso must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. 2009(3) Apex Court Judgments 528 (S.C.)
Civil Procedure Code, 1908, O.6.R.17 - Written statement - Amendment - Admission - Can be explained by amendment even by taking inconsistent pleas or substituting or altering defence. 2009(3) Apex Court Judgments 528 (S.C.)
Civil Procedure Code, 1908, O.6.R.17 - Written statement - Amendment - Amendment of plaint and amendment of written statement are not governed by exactly the same principle - Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action. 2009(3) Apex Court Judgments 528 (S.C.)
Civil Procedure Code, 1908, O.6.R.17 - Written statement - Amendment - Courts are more liberal in allowing an amendment of a written statement than that of a plaint - Addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed. 2009(3) Apex Court Judgments 528 (S.C.)
Civil Procedure Code, 1908, O.18.R.20 - Partition - Preliminary decree passed - Final partition proceedings are not subject to any period of limitation. 2009(3) Apex Court Judgments 475 (S.C.)
Constitution of India
Constitution of India, Art.14 - Article 14 of the Constitution carries with it a positive effect - It cannot be invoked to perpetuate illegality. 2009(3) Apex Court Judgments 482 (S.C.)
Consumer Protection Act, 1986
Consumer Protection Act, 1986, S.2(1)(d) - Consumer - Buyer of goods or commodities for 'self consumption' in economic activities in which they are engaged would be consumers as defined in the Act. 2009(3) Apex Court Judgments 440 (S.C.)
Consumer Protection Act, 1986, S.2(1)(d) - Consumer - Purchase of truck for a consideration which was to be used exclusively for the purpose of earning his livelihood by means of self employment - Held, appellant is a consumer. 2009(3) Apex Court Judgments 440 (S.C.)
Consumer Protection Act, 1986, S.2(1)(d) - Consumer - Purchase of truck for a consideration which was to be used exclusively for the purpose of earning his livelihood by means of self employment - If a driver is engaged even then appellant is a consumer as appellant have continued to earn his livelihood from it and of course, by means of self employment. 2009(3) Apex Court Judgments 440 (S.C.)
Consumer Protection Act, 1986, S.12 - Deficiency in service - Purchase of truck in an auction - Deposit of amount - Delivery of truck after six months - No reason for delay - Moreover necessary document of truck not delivered - It amounts to deficiency of service - Appellant suffered loss of earning - Amount of compensation enhanced to Rs.one lac. 2009(3) Apex Court Judgments 440 (S.C.)
Consumer Protection Act, 1986, S.23 - Medical negligence - Original record and X-Ray films filed but not sent to expert for his opinion due to negligence of Assistant Registrar - Application filed to this effect but rejected - Appellant not to suffer for negligence of Assistant Registrar - All original records be sent to the expert - Case be decided afresh after receipt of expert opinion. 2009(3) Apex Court Judgments 602 (S.C.)
Criminal Procedure Code, 1973
Criminal Procedure Code, 1973, S.197 - Public servant - Sanction for prosecution - For applicability of the provision of S.197 Cr.P.C. it is not necessary that public servant must act in his official capacity - Even when a public servant purports to act in his official capacity, the same will attract the provision of S.197 Cr.P.C. 2009(3) Apex Court Judgments 623 (S.C.)
Criminal Procedure Code, 1973, S.228 - Charge - If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial. 2009(3) Apex Court Judgments 623 (S.C.)
Criminal Procedure Code, 1973, S.313 - Scope and object - Object is to give accused an opportunity to explain the case against him - This statement can be taken into consideration in judging his innocence or guilt - Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 2009(3) Apex Court Judgments 562 (S.C.)
Criminal Procedure Code, 1973, S.313 - Statement of accused recorded u/s 313 Cr.P.C. - This statement can be taken into consideration in judging his innocence or guilt. 2009(3) Apex Court Judgments 562 (S.C.)
Criminal Procedure Code, 1973, S.313 - Statement of accused u/s 313 Cr.P.C. - No incriminating material put to accused and no accusation specifically put in question to accused during his examination u/s 313 Cr.P.C. - Conviction cannot be sustained. 2009(3) Apex Court Judgments 562 (S.C.)
Criminal Procedure Code, 1973, S.360, Probation of Offenders Act, 1958, Ss.3,4, Indian penal Code, 1860, Ss.324, 34 - Conviction u/ss 324 r/w S.34 IPC - Pre-exiting enmity between two families - Two convicts women and they not having any criminal record or previous conviction - Having regard to their age, character and antecedents and the circumstances in which the offence was committed, they ordered to be released of good conduct u/s 360 Cr.P.C. - Other two accused also first offenders - Enmity is not a ground for considering probation - Magistrate after taking report of Probation Officer must have passed the appropriate order. 2009(3) Apex Court Judgments 548 (S.C.)
Criminal Procedure Code, 1973, Ss.378, 386 - Acquittal - Appeal against - Trial court meticulously examined the entire evidence available on record and held that prosecution failed to prove its case and acquitted accused by giving benefit of doubt - High Court did not keep the well settled principles in mind and reversed the judgment of acquittal when the view taken by the trial court was possible as well as plausible - High Court, thus, seriously erred in disturbing the judgment of acquittal and recording the finding of guilt against the accused - Accused acquitted. 2009(3) Apex Court Judgments 469 (S.C.)
DNA Test
DNA Test - Meaning - Deoxyribonucleic Acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual - DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on - Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders - The identification is hundred percent precise, experts opine. 2009(3) Apex Court Judgments 550 (S.C.)
DNA Test - Precautions required to be taken - Ensure preparation of high-molecular-weight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. 2009(3) Apex Court Judgments 550 (S.C.)
Evidence Act, 1872
Evidence Act, 1872, S.9 - Identification parade - Appellant remained admitted in hospital for 13 days - Holding of identification parade would not have served any purpose. 2009(3) Apex Court Judgments 550 (S.C.)
Evidence Act, 1872, S.45 - Expert opinion - Admissibility of expert evidence - Requirements are : (i) that the expert must be within a recognized field of expertise; (ii) that the evidence must be based on reliable principles, and (iii) that the expert must be qualified in that discipline. 2009(3) Apex Court Judgments 602 (S.C.)
Evidence Act, 1872, S.45 - Expert opinion - Real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. 2009(3) Apex Court Judgments 602 (S.C.)
Evidence Act, 1872, S.67 - Affidavit - Notary before whom sworn not examined - Not a proof in accordance with law - No reliance can be placed thereon. 2009(3) Apex Court Judgments 550 (S.C.)
Eye witness
Eye witness - No attempt made to save live of deceased from the clutches of accused - Held, their abnormal conduct by itself cannot be taken as a ground to disbelieve and discard their testimony in regard to the genesis of the occurrence and the part played by the appellant and the other convicted persons in the commission of the offence. 2009(3) Apex Court Judgments 445 (S.C.)
Haryana Panchayati Raj Election Rules, 1994
Haryana Panchayati Raj Election Rules, 1994, Rule 69 - Election - Recount - Margin of 4 votes - A narrow margin of 4 votes does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. 2009(3) Apex Court Judgments 510 (S.C.)
Hindu Adoption and Maintenance Act, 1956
Hindu Adoption and Maintenance Act, 1956, S.6 - Adoption - Validity of adoption cannot be decided by Collector. 2009(3) Apex Court Judgments 574 (S.C.)
Hindu Marriage Act, 1955
Hindu Marriage Act, 1955, Ss.13, 13-B - Irretrievable break down of marriage - Not one of the grounds indicated in the two provisions of the Act - It is only Supreme Court and none other Court which can apply the said doctrine to a proceeding under either of the said two provisions. 2009(3) Apex Court Judgments 597 (S.C.)
Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - Consent given at the time of filing of joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for order and a decree for divorce is finally passed. 2009(3) Apex Court Judgments 597 (S.C.)
Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - It is only Supreme Court which can convert a proceeding u/s 13 of the Act into one u/s 13-B of the Act and pass a decree for mutual divorce, without waiting for the statutory period of six months - None of other Courts can exercise such power. 2009(3) Apex Court Judgments 597 (S.C.)
Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - Waiving of waiting period of six months - It is only Supreme Court which can waive waiting period of six months - High Court or Civil Courts have no such power to grant relief before the periods prescribed under the relevant provisions. 2009(3) Apex Court Judgments 597 (S.C.)
Indian Penal Code, 1860
Indian Penal Code, 1860, S.120-B - Criminal conspiracy - Ingredients of the offence are : (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means - It is necessary to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. 2009(3) Apex Court Judgments 623 (S.C.)
Indian Penal Code, 1860, S.120-B - Criminal conspiracy - Often conspiracy is hatched in secrecy - As it is not possible to prove the offence by substantial direct evidence the same can be proved by circumstantial evidence. 2009(3) Apex Court Judgments 623 (S.C.)
Indian Penal Code, 1860, Ss.302/34 - Murder - Person whose shop was just 2-3 steps away not examined - Accused identified from the light of lantern burning in that shop - Lantern not seized - Held, non examination of that person and not seizing lantern is destructive of the substratum of the prosecution story - Accused acquitted. 2009(3) Apex Court Judgments 469 (S.C.)
Indian Penal Code, 1860, Ss.302, 147, 148, 149 - Conviction of eight accused by trial Court - Four acquitted by High Court - One accused filed appeal thereagainst - Testimony of eye witnesses was neither embellished nor embroidered - No reason as to why they will falsely depose against the appellant - Motive was there to commit murder of deceased as accused were having a grudge against deceased because of his involvement in murder of son of one of accused - FIR promptly lodged in which name of all accused persons were mentioned - Merely because eye witnesses did not make any attempt to save life of deceased from clutches of accused, their abnormal conduct by itself cannot be taken as ground to discard their testimony - Ocular version corroborated by medical evidence - Held, that appellant along with other accused was constructively liable - No reliable evidence led by prosecution to prove guilt of acquitted accused - Order of High Court convicting appellant confirmed. 2009(3) Apex Court Judgments 445 (S.C.)
Indian Penal Code, 1860, Ss.405, 406 - Criminal breach of trust - Essential ingredients are : (i) entrusting any person with property or with any dominion over property; (ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. 2009(3) Apex Court Judgments 532 (S.C.)
Indian Penal Code, 1860, Ss.405, 406 - Criminal breach of trust - Offence is committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do. 2009(3) Apex Court Judgments 532 (S.C.)
Indian Penal Code, 1860, Ss.405, 406 - Misappropriation of any gift made to the bridegroom or his parents - Whether in accordance with any custom or otherwise - Not an offence u/s 406 of the Code. 2009(3) Apex Court Judgments 532 (S.C.)
Indian Penal Code, 1860, S.498-A - Essential ingredients of the offence u/s 498-A IPC are : (1) A woman must be married; (2) She must be subjected to cruelty; (3) Cruelty must be of the nature of: (i) any willful conduct as was likely to drive such woman: (a) to commit suicide; (b) cause grave injury or danger to her life, limb, either mental or physical; (ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security, (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand, (iii) woman was subjected to such cruelty by: (1) husband of that woman, or (2) any relative of the husband. 2009(3) Apex Court Judgments 532 (S.C.)
Indian Penal Code, 1860, S.498-A - For an offence u/s 498-A IPC complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any willful conduct on the part of the accused of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. 2009(3) Apex Court Judgments 532 (S.C.)
Indian Penal Code, 1860, S.498-A - Kicking with leg and telling that her mother is a liar or that accused poisoned the ears of her son against the respondent or that she gave two used lady suits of her daughter to the complainant and has been given perpetual sermons to the complainant or threatening that her son may be divorced for the second time - These all are not offence u/s 498-A IPC. 2009(3) Apex Court Judgments 532 (S.C.)
Indian Penal Code, 1860, S.498-A - Place of marriage - Nothing to do with an offence u/s 498-A IPC. 2009(3) Apex Court Judgments 532 (S.C.)
Industrial Disputes Act, 1947
Industrial Disputes Act, 1947, S.11A - Power of Labour Court and/or Industrial Tribunal to interfere with the quantum of punishment cannot be denied but the same should be exercised judiciously. 2009(3) Apex Court Judgments 489 (S.C.)
Insurance Act, 1938
Insurance claim - Interest - Insurer rejected the assessments of surveyor and joint surveyor - Accepted the assessment made by Chartered Accountant - It cannot be said that insurer has caused an unnecessary delay of three years - Interest at the rate of 9% is payable from the date of acceptance of assessment made by Chartered Accountant. (566)S.64 - Insurance claim - Report of surveyor - Rejection of - If report is prepared in good faith, due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the Surveyors. 2009(3) Apex Court Judgments 566 (S.C.)
Insurance Act, 1938, S.64 - Second surveyor - Cannot be appointed as a matter of course - If for any valid reason the report of Surveyor is not acceptable to the insurer, may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest. 2009(3) Apex Court Judgments 566 (S.C.)
Insurance Act, 1938, S.64 - Second surveyor - Insurance claim - Assistance of surveyor should be taken at the time of settlement of claim - However, insurer is not bound by the assessment of surveyor - In case insurer is of the view that surveyor has not taken into consideration certain material facts, it can depute another surveyor to conduct a fresh survey to estimate the loss suffered by the insured. 2009(3) Apex Court Judgments 566 (S.C.)
Insurance Act, 1938, S.64 - Second surveyor - Insurance claim - Insurance company cannot appoint surveyor one after another so as to get a tailor made report - If for any reason, report of Surveyor is not acceptable, the insurer has to give valid reason for not accepting the report. 2009(3) Apex Court Judgments 566 (S.C.)
Land Acquisition Act, 1894
Land Acquisition Act, 1894, Ss.4, 5A, 6 - Land acquisition - Notification u/s 4 issued in 2002 and u/s 6 in the year 2003 - Challenged on ground that opportunity of hearing of objections not given - Declaration quashed - Land owners agreed not to raise any objections later on with regard to limitation if second declaration issued - Second declaration issued in 2006 - Second notification quashed being beyond limitation of one year - No statement or concession by land owner can override mandatory statutory provision. 2009(3) Apex Court Judgments 591 (S.C.)
Land Acquisition Act, 1894, Ss.4, 6 - Land acquisition - Notification u/s 6 issued after four years - Beyond limitation of one year - Barred by proviso u/s 6 - Provision is couched in negative language, hence mandatory in nature. 2009(3) Apex Court Judgments 591 (S.C.)
Land Acquisition Act, 1894, Ss.23, 18 - Land acquisition - Compensation - Once the court takes the view that claimants are entitled to enhanced compensation they should not be denied the same on the mere technical ground of non payment of the court fees and an opportunity must be given for payment of the same. 2009(3) Apex Court Judgments 462 (S.C.)
Limitation Act, 1963
Limitation Act, 1963, S.3 - Limitation - Statement or concession - Cannot override a mandatory statutory provision. 2009(3) Apex Court Judgments 591 (S.C.)
Motor Vehicles Act, 1988
Motor Vehicles Act, 1988, S.166 - Accident - Compensation - Can be determined either on the basis of the actual damages suffered or upon application of the structured formula. 2009(3) Apex Court Judgments 587 (S.C.)
Motor Vehicles Act, 1988, S.166 - Accident - Compensation - Death of salaried person - In computing net income not only basic pay but also dearness allowance and House Rent Allowance are also to be included. 2009(3) Apex Court Judgments 457 (S.C.)
Motor Vehicles Act, 1988, S.166 - Accident - Compensation - Girl of nine years suffered permanent disability of 10% - She had no earning - What amount could be awarded towards future loss of earning or prospective loss of earning could not have been determined on the basis of any legal principle - Second Schedule provides that where no income is proved, notional income for the purpose of payment of compensation a sum of Rs.15,000/- per annum would be considered as the multiplicand - Multiplier required to be applied would be 15 - Held, amount of compensation of Rs.1,12,000/- granted by High Court appears to be adequate in the absence of any evidence having been brought on record as to the actual damages - Appeal dismissed. 2009(3) Apex Court Judgments 587 (S.C.)
Motor Vehicles Act, 1988, S.166 - Carpenter aged 40 years - Death in accident - Award of Rs.2.32 lacs enhanced to Rs.4.84 lacs by High Court - Working as carpenter in the year 1997 deceased could have comfortably earned Rs.100/- per day - Even if he was working for six months in a year as carpenter and for remaining six months he was working in his own field, that would not have materially affected his income - Multiplier of 17 applied by High Court is proper and calls for no interference. 2009(3) Apex Court Judgments 559 (S.C.)
Motor Vehicles Act, 1988, S.166 - Carpenter aged 40 years - Death in accident - Plea of personal deduction from 1/4th to 1/3rd - Deceased left behind a large family to be looked after, who all were dependents on his income - Keeping this in view High Court deducted 1/4th as amount which deceased would have spent on himself - Held, there is no error in deduction of 1/4th from total income of the decreased towards the expenses which would have been incurred on himself. 2009(3) Apex Court Judgments 559 (S.C.)
Narcotic Drugs and Psychotropic Substances Act, 1985
Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.8, 18 - Link evidence - Non examination of the person who was in possession of sample for few hours - Not fatal when sample reached FSL with seals intact - Order of conviction by trial court restored. 2009(3) Apex Court Judgments 451 (S.C.)
Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.8, 18 - Opium - Recovery of 6 kg. - When seals are intact then delay in sending the seals to the FSL is not fatal to the prosecution case. 2009(3) Apex Court Judgments 451 (S.C.)
Natural justice
Natural justice - Caste certificate - Cancellation - Before cancellation opportunity of hearing must be given - Impugned order set aside - Dispute regarding caste certificate be decided after giving hearing to the parties. 2009(3) Apex Court Judgments 450 (S.C.)
Partition
Partition - Involves three issues : (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds? 2009(3) Apex Court Judgments 475 (S.C.)
Partition - 'Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees - When all co-owners get separated, it is a partition. 2009(3) Apex Court Judgments 475 (S.C.)
Partition/Separation - Where co-sharers divide it among themselves by metes and bounds it is partition - In case only one out of many co-sharers wants to get his share separated and others continue to remain joint then there is only a separation of one of the co-sharers. 2009(3) Apex Court Judgments 475 (S.C.)
Prevention of Corruption Act, 1988
Prevention of Corruption Act, 1988, S.13(1)(d) - Scope - Criminal misconduct - Offence of criminal misconduct is committed by a public servant when he abuses his position and obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. 2009(3) Apex Court Judgments 623 (S.C.)
Prevention of Corruption Act, 1988, S.13(1)(d) - Scope - Taking pecuniary benefit by a public servant for himself or for any other person is not an offence - For an offence it must be proved that he did so by abusing his position as public servant or holding office as a public servant - In the latter category of cases, absence of any public interest is a sine qua non. 2009(3) Apex Court Judgments 623 (S.C.)
Prevention of Corruption Act, 1988, S.19, Criminal Procedure Code, 1973, S.197 - Public servant - Sanction for prosecution - There is a distinction between the two provisions - Sanction for prosecution u/s 19 of Prevention of Corruption Act is not required in respect of those who had ceased to be a public servant whereas u/s 197 Cr.P.C. sanction for prosecution is required both for those who were or are public servants. 2009(3) Apex Court Judgments 623 (S.C.)
Probation of Offenders Act, 1958
Probation of Offenders Act, 1958, Ss.4, 5 - Enmity - Not a ground for considering probation. 2009(3) Apex Court Judgments 548 (S.C.)
Probation of Offenders Act, 1958, Ss.4, 5 - Probation - Enmity between two families - Not a ground for considering probation - Having regard to the circumstances of the case, nature of the offence, character of the offenders, Magistrate to secure report of Probation Officer and then pass appropriate order. 2009(3) Apex Court Judgments 548 (S.C.)
Rent & Eviction
Rent & Eviction - Bona fide need - To start a new business - Claim for starting new business cannot be rejected on the ground of having no experience in the new business - Impugned order set aside - Matter remitted for decision afresh on the issue of bona fide need. 2009(3) Apex Court Judgments 468 (S.C.)
Rent & Eviction - Eviction order or decree - Appeal or revision - Stay of eviction order - Can be granted subject to terms including payment of higher rent than contractual rent - Status quo ante is to be restored in case appeal or revision of tenant is accepted and tenant is entitled to get back the amount paid in excess of contractual rent - Amount fixed by Court over and above the contractual monthly rent, ordinarily, should not be ordered to be paid to the landlord during the pendency of appeal or revision - Deposited amount alongwith accrued interest to be paid after final disposal to either side depending upon the result of the case - Court can order payment of such amount to landlord but same should be on terms so that in case the final decision goes in favour of tenant the payment should be made to him without any undue delay or complications. 2009(3) Apex Court Judgments 495 (S.C.)
Rent & Eviction - Eviction order or decree - Appeal or revision - Stay of execution of eviction order - Revisional or Appellate Court can grant stay of execution of eviction order or decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent - Amount so fixed should not be excessive, fanciful or punitive amount. 2009(3) Apex Court Judgments 495 (S.C.)
Rent & Eviction - Non residential building - Bona fide requirement - Landlord in possession of another non residential building - A landlord is not precluded to seek eviction of tenant from any non residential building even if he is having another non-residential building if landlord is able to satisfy that non residential building occupied by him is not sufficient and suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to commence or that the shifting of his business has become inevitable. 2009(3) Apex Court Judgments 453 (S.C.)
Representation of the People Act, 1951
Representation of the People Act, 1951, S.176 - Recounting of votes - An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re-count of votes. 2009(3) Apex Court Judgments 510 (S.C.)
Representation of the People Act, 1951, S.176 - Recounting of votes - Two basic requirements are (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. 2009(3) Apex Court Judgments 510 (S.C.)
Service
Service - Appointment made in violation of the constitutional scheme is a nullity - Rendition of service for a long time, it is well known, does not confer permanency - It is furthermore not a mode of appointment. 2009(3) Apex Court Judgments 482 (S.C.)
Service - Appointment through side door - Violative of constitutional scheme of equality contained in Articles 14 and 16 of the Constitution of India. 2009(3) Apex Court Judgments 482 (S.C.)
Service - Executive instructions do not prevail over statutory provisions. 2009(3) Apex Court Judgments 482 (S.C.)
Service - Misconduct - Termination of service - Bus conductor found guilty of not issuing tickets to passengers on several occasions - Despite warnings repeating conduct - Service terminated after departmental inquiry - Labour Court re-instated him - Held, bus conductor acts in a fiduciary capacity whose duty is to collect fares and deposit the same with Corporation and in case he fails to do so, it will be a misplaced sympathy to order his reinstatement instead of dismissal - Order of reinstatement set aside. 2009(3) Apex Court Judgments 489 (S.C.)
Service - Misconduct - Termination of service - If punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases. 2009(3) Apex Court Judgments 519 (S.C.)
Service - Misconduct - Unauthorized absence from duty for six months - Termination of service - Doctrine of proportionality is well recognized concept of judicial review in our jurisprudence - A reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 2009(3) Apex Court Judgments 519 (S.C.)
Service - Need for regular employee and existence of regular vacancy are two distinct and different things - Work-charged employees may claim to be regularized in view of long period of service - However without regularization their dependents cannot invoke the rules of compassionate appointment. 2009(3) Apex Court Judgments 482 (S.C.)
Service - Regular vacancy - Means a vacancy which occurred in a post sanctioned by the competent authority - A regular vacancy is which arises within the cadre strength - A regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality. 2009(3) Apex Court Judgments 482 (S.C.)
Service - Unauthorized absence from duty for six months - Termination of service - Employee admitted his guilt and explained reasons for his absence that he did not had any intention nor desired to disobey the order of higher authority or violate any of the rules of company and reason was purely personal and beyond his control - As a matter of fact he sent his resignation which was not accepted - Held, order of removal from service is not justified as no reasonable employer would have imposed extreme punishment of removal in like circumstances - Punishment is not only unduly harsh but grossly in excess to the allegations. 2009(3) Apex Court Judgments 519 (S.C.)
Service - 'Government employee' - Daily wage employees - Not covered in the definition of the 'government employee'. 2009(3) Apex Court Judgments 482 (S.C.)
Specific Relief Act, 1963
Specific Relief Act, 1963, S.34 - Adoption - Declaration - Adoption whether valid or not - Issue as to - Pertains to the status and legal character of an individual - Civil suit for declaration before a civil court is maintainable. 2009(3) Apex Court Judgments 574 (S.C.)
Statutes
Statutes - Interpretation - Heading or marginal note - Section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. 2009(3) Apex Court Judgments 460 (S.C.)
Suspicion
Suspicion - A strong suspicion or that in all probabilities the accused was guilty of commission of heinous offence, would by itself not a substitute for proof. 2009(3) Apex Court Judgments 550 (S.C.)
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