Part 12

IMPORTANT DECISIONS

 Agreement to sell - Specific performance - It is the prerogative of the buyer to find out the defects in a property before buying it and also to make the seller rectify such defects. 2009(4) Civil Court Cases 650 (S.C.)

 Agreement to sell - Specific performance - No conditional offer is permissible in a suit for specific performance. 2009(4) Civil Court Cases 662 (S.C.)

 Dishonour of cheque - Payment made - Complainant not agreeable - Does not absolve accused of criminal offence if complainant is not agreeable to the compromise. 766 (Rajasthan)

 Divorce - DNA test - Cannot be ordered in absence of allegation that birth of child was as a consequence of illicit relationship of wife with some third person. 2009(4) Civil Court Cases 622 (S.C.)

 Electricity - Advocate - Running his office at a commercial place - It is commercial tariff which is applicable. 2009(4) Civil Court Cases 699 (Rajasthan) (DB)

 Execution - Decree for permanent injunction can be executed against L.R's of J.D. 2009(4) Civil Court Cases 608 (P&H)

 O.22.R.5 CPC - Question regarding Will gone into a detailed enquiry U.O.22.R.5 CPC - Evidence of appellant and attesting witnesses recorded who were thoroughly cross examined - That evidence need not to be lead again in the main suit. 2009(4) Civil Court Cases 601 (S.C.)

 Once a document is admitted in evidence, - it is not permissible to the Court to reject it on the ground that it has not been duly stamped. 2009(4) Civil Court Cases 692 (M.P.)

 Plaint - Amendment - Suit for injunction cannot be changed into one for possession, in absence of any allegation that it was during the pendency of the suit that plaintiff was dispossessed. 2009(4) Civil Court Cases 768 (P&H)

 Rent & Eviction - Bona fide need - To start a new business - Claim cannot be rejected on ground that landlord has no experience in the new business to be started. 2009(4) Civil Court Cases 657 (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(4) Civil Court Cases 748 (S.C.)

 Rent & Eviction - Sub letting - Law as to - Legal position summarised. 2009(4) Civil Court Cases 577 (S.C.)

 Signatures - A person signing a document is presumed to have signed after reading and understanding the document properly unless there is proof of force or fraud. 2009(4) Civil Court Cases 598 (S.C.)

 Substitution application - Due to inadvertence order not passed - Can be allowed afterwards also - When so allowed judgment cannot be set aside on the ground that it is in favour of a dead person. 2009(4) Civil Court Cases 732 (Allahabad)

SUBJECT INDEX

Agreement to sell

 Agreement to sell - Ready and willing - Plaintiff must always be ready and willing to complete the terms of the agreement for sale and that he has not abandoned the contract and his intention is to keep the contract subsisting till it is executed. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 650 (S.C.)

 Agreement to sell - Ready and willing - Trust property - Plaintiff seeking clarifications regarding joining of all trustees in execution of sale deed, asking the second respondent to enter into another agreement by way of indemnifying the plaintiff for any loss due to defect in the title - Demand not only unjustified and unreasonable but it was in fact imaginary. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 650 (S.C.)

 Agreement to sell - Specific performance - Agreement to sell does not clothe the vendee with any lien, or property right, but merely entitles him to claim specific performance of the contract, if it is enforceable in law, on application of equitable principles. 2009(4) Civil Court Cases 752 (Delhi)

 Agreement to sell - Specific performance - It is the prerogative of the buyer to find out the defects in a property before buying it and also to make the seller rectify such defects - The rights of the buyer to seek reasonable clarifications and raise reasonable doubts have been statutorily recognized by S.55 of Transfer of Property Act, 1882. (Transfer of Property Act, 1882, S.55). 2009(4) Civil Court Cases 650 (S.C.)

 Agreement to sell - Specific performance - No conditional offer is permissible in a suit for specific performance. 2009(4) Civil Court Cases 662 (S.C.)

 Agreement to sell - Specific performance - Part of contract - Sale by joint owner to extent of his share - Vendee would be entitled to get partition by stepping into shoes of his vendor - Decree of specific performance cannot be denied to purchaser. (Specific Relief Act, 1963, S.12). 2009(4) Civil Court Cases 610 (Rajasthan)

 Agreement to sell - Specific performance - Ready and willing - Discretionary relief of specific performance can be granted only in the event the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of contract which is not confined only to the stage of filing of the plaint but also at the subsequent stage viz. at the hearing. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 662 (S.C.)

 Agreement to sell - Specific performance - Ready and willing - Readiness and willingness on the part of plaintiff is not confined to the stage of filing of plaint but also at the subsequent stage viz. at the hearing. (Specific Relief Act, 1963, S.16(c). 2009(4) Civil Court Cases 752 (Delhi)

 Agreement to sell - Time an essence of contract - Condition in agreement that time is essence of contract - Held, such a clause in the agreement is insufficient as a sole reason to lead one to the conclusion that time was to be of essence of the contract. 2009(4) Civil Court Cases 650 (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(4) Civil Court Cases 704 (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(4) Civil Court Cases 704 (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(4) Civil Court Cases 704 (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(4) Civil Court Cases 704 (S.C.)

 Civil Procedure Code, 1908, Ss.15 to 20 - Jurisdiction - Allegations made in the plaint decide the Forum - Jurisdiction does not depend upon the defence taken by the defendants in the written statement. 2009(4) Civil Court Cases 723 (Delhi)

 Civil Procedure Code, 1908, S.80 - Notice - It is mandatory to issue prior notice to file a suit against any holder of a public office in his official capacity. 2009(4) Civil Court Cases 812 (Delhi)

 Civil Procedure Code, 1908, O.1.R.10(2) - Transposition of defendant as plaintiff in a suit for partition - In a suit for partition every plaintiff is a defendant and defendant is plaintiff - Every legitimate sharer can claim partition and allotment of his share - It is just and expedient to allow the application to come on record as plaintiff and prosecute the suit. 2009(4) Civil Court Cases 660 (Karnataka)

 Civil Procedure Code, 1908, O.2.R.2 - Earlier suit for perpetual injunction - Fresh suit for declaration and possession - Both the suits do not belong to the same category - Question of splitting them does not arise - Both the suits are mutually exclusive. 2009(4) Civil Court Cases 701 (A.P.)

 Civil Procedure Code, 1908, O.2.R.3 - Two cause of actions - Joining two separate causes of action in one suit must fail. 2009(4) Civil Court Cases 812 (Delhi)

 Civil Procedure Code, 1908, O.3.R.1 - Power of attorney holder - To act on behalf of the principal - Term 'act' does not include deposing in place of and instead of the principal - Power of attorney holder can depose in respect of acts performed by him as attorney but cannot depose for the acts done by the principal and not by him - Attorney cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. 2009(4) Civil Court Cases 736 (P&H)

 Civil Procedure Code, 1908, O.3, O.29, O.30 - Vakalatnama - Defective vakalatnama is liable to be returned - Defects routinely found in Vakalatnamas are : (a) Failure to mention the name/s of the person/s executing the Vakalatnama, and leaving the relevant column blank; (b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatnama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama); (c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance; (d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama; (e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel); (f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed - For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/statement that the signature is for 'self and as guardian of his minor children' - Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in his/her personal capacity and as the person authorized to sign on behalf of the corporate body/firm/ society/organisation; (g) Where the Vakalatnama is executed by a power-of-attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney; (h) Where several persons sign a single vakalatnama, failure to affix the signatures seriatim, without mentioning their serial numbers or names in brackets - (Many a time it is not possible to know who have signed the vakalatnama where the signatures are illegible scrawls); (i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for tiling an appeal or revision - (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader). 2009(4) Civil Court Cases 641 (Delhi) (DB)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Belated stage - Amendment sought at belated stage cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. 2009(4) Civil Court Cases 599 (S.C.)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Can be allowed at any stage of the proceedings so far as it does not change the fundamental character of the suit. 2009(4) Civil Court Cases 617 (Allahabad)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Suit for cancellation of sale deed - Plaintiff dispossessed during pendency of suit - Amendment sought to claim relief of mandatory injunction - As plaintiff was dispossessed during pendency of suit as such amendment was necessary - Nature of suit is not changed by the proposed amendment - Amendment allowed. 2009(4) Civil Court Cases 617 (Allahabad)

 Civil Procedure Code, 1908, O.6.R.17 - Plaint - Amendment - Suit for permanent injunction to suit for possession - Held, suit for injunction cannot be changed into one for possession, in absence of any allegation that it was during the pendency of the suit that plaintiff was dispossessed. 2009(4) Civil Court Cases 768 (P&H)

 Civil Procedure Code, 1908, O.6.R.17 - Written statement - Amendment - Contradictory plea - Defendant can raise inconsistent pleas to defeat the rights of the plaintiff - Amendment cannot be rejected merely on the ground that the plea raised in the counter claim is contradictory to the plea raised in the written statement. 2009(4) Civil Court Cases 755 (P&H)

 Civil Procedure Code, 1908, O.7.R.11 - Rejection of plaint - Suit for possession, damages/mesne profits on ground that defendant is in unauthorised occupation - With these averments plaintiff could approach the Civil Court only for a decree of possession - It is not to be considered at the initial stage whether he would be able to get this relief or not finally - Maintainability of the suit is one thing and entitlement to the relief prayed for in the suit on the basis of averments in the plaint is another thing - Suit to be tried on merits. 2009(4) Civil Court Cases 723 (Delhi)

 Civil Procedure Code, 1908, O.7.R.11(a) - Rejection of plaint - Cause of action - Court is required to find out whether any cause of action is disclosed in the plaint - Court is not required to consider the defence of other side at such a stage. 2009(4) Civil Court Cases 633 (Bombay) (DB)

 Civil Procedure Code, 1908, O.7.R.11(d) - Rejection of plaint - Barred by law - Means it prohibits the civil Court from taking cognizance of dispute altogether - There must be a provision in a particular legislation prohibiting Civil Court from entertaining the dispute and an alternative forum and remedy provided. 2009(4) Civil Court Cases 772 (Bombay)

 Civil Procedure Code, 1908, O.7.R.3 - Identity of property - Not disputed specifically in the pleadings nor an issue framed - Held, identity of property cannot be permitted to be disputed in second appeal for the first time. 2009(4) Civil Court Cases 729 (P&H)

 Civil Procedure Code, 1908, O.8.R.6-A, Court Fees Act, 1870, S.7 - Counter claim - Question of valuation of suit property, payment of Court fee and pecuniary jurisdiction of trial Court to try the counter claim - All these issues decided in favour of defendant - Revisional Court erred in law in dismissing the revision by holding it as not maintainable - Matter needs reconsideration - Impugned order quashed - Trial Court directed to decide the relevant issues in accordance with law. 2009(4) Civil Court Cases 728 (Allahabad)

 Civil Procedure Code, 1908, O.8.R.6-A - Counter claim - Can be filed even after filing of the written statement. 2009(4) Civil Court Cases 755 (P&H)

 Civil Procedure Code, 1908, O.9.R.7 - Defendant who is proceeded exparte can participate in the trial even without getting the order of exparte set aside. 2009(4) Civil Court Cases 630 (P&H)

 Civil Procedure Code, 1908, O.9.R.7 - Ex parte order - Setting aside - Party, who was newly impleaded had just one chance for his appearance to file his written statement before he was proceeded ex parte - It will be too harsh to deny him even to file the written statement - Exparte order set aside - Permission granted to file written statement but he will have no right to cross examine witnesses whose cross examination stands completed but he will have right to cross examine other witnesses whose evidence is not completed. 2009(4) Civil Court Cases 630 (P&H)

 Civil Procedure Code, 1908, O.9.R.13 - Exparte decree - So long it is not set aside it is binding on parties - Exparte decree is as good as a decree obtained after contest. 2009(4) Civil Court Cases 736 (P&H)

 Civil Procedure Code, 1908, O.13.R.4 - Marking of a document - Unstamped document - Marked as an exhibit and admitted in evidence under the signature of the Court - It cannot be said that the document has been inadvertently admitted. 2009(4) Civil Court Cases 692 (M.P.)

 Civil Procedure Code, 1908, O.17.R.2, O.9.R.13 - Court proceeded U.O.17.R.2 CPC - In fact Court proceeds ex parte under O.9 CPC - Defendant gets a right to either file an application U.O.9.R.13 CPC or to file a regular first appeal - Held, application filed U.O.9.R.13 CPC is maintainable. 2009(4) Civil Court Cases 624 (Allahabad)

 Civil Procedure Code, 1908, O.17.R.3 - On the day evidence was closed plaintiff was ill and unable to attend Court and medical certificate wrongly discarded - Manifest injustice caused - Order set aside - Opportunity to lead evidence granted. 2009(4) Civil Court Cases 674 (P&H)

 Civil Procedure Code, 1908, O.21.R.32, S.50 - Execution - Decree for permanent injunction can be executed against L.R's of J.D. - However, legal representatives are liable only to the extent of the property of deceased which has come to their hands by way of inheritance. 2009(4) Civil Court Cases 608 (P&H)

 Civil Procedure Code, 1908, O.21.R.32 - Execution - Prohibitory injunction - Obstruction - D.H. is to be put into possession - To put behind bars or to attach property of wrong doer is no relief to the D.H. - Relief to D.H. is only by giving respect to the Court's decree. 2009(4) Civil Court Cases 618 (Rajasthan)

 Civil Procedure Code, 1908, O.21.R.97 - Execution - 'Any person" - Includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger. 2009(4) Civil Court Cases 793 (Orissa)

 Civil Procedure Code, 1908, O.22.R.1 - Substitution application - Filed before decision of case - Due to inadvertence order not passed - Can be allowed afterwards also - When so allowed judgment cannot be set aside on the ground that it is in favour of a dead person. 2009(4) Civil Court Cases 732 (Allahabad)

 Civil Procedure Code, 1908, O.22.R.4 - Decree passed against a dead person - Not null and void. 2009(4) Civil Court Cases 716 (P&H)

 Civil Procedure Code, 1908, O.22.R.5, S.11 - O.22.R.5 CPC is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record - It does not operate as res judicata - Inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. 2009(4) Civil Court Cases 601 (S.C.)

 Civil Procedure Code, 1908, O.22.R.5 - Will - Question regarding Will gone into a detailed enquiry - Evidence of appellant and attesting witnesses recorded who were thoroughly cross examined - Defendant also examined himself and tried to prove that Will was a false document but utterly failed - Held, it would be futile to expect the appellant to lead that evidence again in the main suit. 2009(4) Civil Court Cases 601 (S.C.)

 Civil Procedure Code, 1908, O.23.R.1 - Appeal - Withdrawal - Procedure applicable to withdrawal of suit applies for withdrawal of appeal also. 2009(4) Civil Court Cases 701 (A.P.)

 Civil Procedure Code, 1908, O.23.R.1 - Suit for specific performance - Permission sought to withdraw suit for filing a fresh suit including new cause of action of breach of agreement for resale of another land to him - No reason assigned by trial Court in refusing to allow withdrawal of suit - Impugned order set aside. 2009(4) Civil Court Cases 770 (Rajasthan)

 Civil Procedure Code, 1908, O.23.R.1 - Withdrawal of suit - Fresh suit for the same relief and on the same cause of action is barred unless such right is reserved and Court accords permission. 2009(4) Civil Court Cases 701 (A.P.)

 Civil Procedure Code, 1908, O.23.R.1 - Withdrawal of suit - Suit for perpetual injunction - Permission sought to withdraw suit and to file a fresh suit for declaration and possession - Even without seeking leave of appeal a fresh suit for declaration and possession can be filed as nature of relief and cause of action in the two categories of suit are totally different. 2009(4) Civil Court Cases 701 (A.P.)

 Civil Procedure Code, 1908, O.38.R.5, Ss.16, 17 - Attachment before judgment - Money suit - Property sought to be attached need not to be subject matter of the suit claim - Property within or beyond the jurisdiction of Court can be attached. 2009(4) Civil Court Cases 734 (Kerala) (DB)

 Civil Procedure Code, 1908, O.41.R.1 - Appeal - Filing of an appeal is not an automatic stay of execution of decree - During pendency of appeal it is possible for the decree holder to get the decree executed - Execution of decree during pendency of appeal is subject to the restitution of property in the event the appeal is allowed and the decree is set aside. 2009(4) Civil Court Cases 662 (S.C.)

 Civil Procedure Code, 1908, O.47.R.1, S.114 - Review - Not an appeal in disguise - Review court does not sit in appeal over its own order - A re-hearing of the matter is impermissible in law - It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered - It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. 2009(4) Civil Court Cases 662 (S.C.)

 Civil Procedure Code, 1908, O.47.R.1, S.114 - Review - Scope - Power of review is available in the event of discovery of new and important matter or evidence which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced at the time when order was made - Review application is also maintainable when order is passed on account of some mistake - An application for review shall also lie for any other sufficient reason. 2009(4) Civil Court Cases 662 (S.C.)

Consent decree

 Consent decree - Family settlement - Once the factum of family settlement was admitted by J.D. it has to be presumed to be correct - It is not open for the Court to go into the merit of the decree and to find out whether the averments made in the pleadings on the basis of which the decree was passed are correct or wrong. 2009(4) Civil Court Cases 716 (P&H)

Contract Act, 1872

 Contract Act, 1872, Ss.20, 23, 24, 25, 29, 56 & 65 - Void contract - A party to a void contract is entitled to institute a suit for enforcement of the contract and in the alternative to pray for refund of the money. 2009(4) Civil Court Cases 772 (Bombay)

Criminal Procedure Code, 1973

 Criminal Procedure Code, 1973, S.125 - Maintenance - Wife and daughter - Daughter studying in class XII - Maintenance granted Rs.1,000/- p.m. to each - Court of Sessions reduced same to Rs.700/- p.m. - Held, order of revisional Court not only irregular but also illegal - Maintenance of Rs.1,000/- p.m. each restored. 2009(4) Civil Court Cases 639 (Rajasthan)

East Punjab Urban Rent Restriction Act, 1949

 East Punjab Urban Rent Restriction Act, 1949, S.13 - Eviction - Personal necessity - Landlord old lady having no child of her own - Landlord required accommodation for another person and his family to assist her in old age - Held, requirement of landlord for another family who is not related to landlord whom landlord considers as worthy companion for comfortable living cannot be allowed. 2009(4) Civil Court Cases 682 (P&H)

 East Punjab Urban Rent Restriction Act, 1949, S.13(2)(i) - Eviction - Assessment of provisional rent - Relationship of landlord and tenant denied - Rent Controller is not under an obligation to pass a provisional order assessing rent - In case relationship of landlord and tenant is subsequent established then tenant loses the opportunity to make payment towards arrears of rent and is liable to be evicted without any further opportunity to deposit the rent. 2009(4) Civil Court Cases 789 (P&H)

Electricity

 Electricity - Tariff - Advocate - An Advocate running his office not at his residence but in a commercial place - It is commercial tariff which is applicable. 2009(4) Civil Court Cases 699 (Rajasthan) (DB)

Evidence Act, 1872

 Evidence Act, 1872, S.18 - Admission - An admission is not conclusive as to the truth of a matter stated therein - It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made - It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to its detriment, which it might become conclusive by way of estoppel - It must be shown that there is a clear and unambiguous statement by the opponent, then it would be conclusive unless explained. 2009(4) Civil Court Cases 736 (P&H)

 Evidence Act, 1872, Ss.62, 68, Transfer of Property Act, 1882, S.54 - Primary evidence - Notarised copy of sale deed produced - Original brought in Court - Plaintiff not cross examined as to non production of original sale deed - Contention that attested copy by Notary Public does not prove title repelled. 2009(4) Civil Court Cases 729 (P&H)

 Evidence Act, 1872, S.68 - Sale deed - Not a public document - Its execution is required to be proved by leading evidence. 2009(4) Civil Court Cases 736 (P&H)

 Evidence Act, 1872, S.112 - Child - Paternity - There is presumption of legitimacy when there is no allegation by husband that child was born as a consequence of illicit relationship of wife with third person. 2009(4) Civil Court Cases 622 (S.C.)

 Evidence Act, 1872, S.114 - Signatures - A person signing a document is presumed to have signed after reading and understanding the document properly unless there is proof of force or fraud. 2009(4) Civil Court Cases 598 (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(4) Civil Court Cases 704 (S.C.)

Hindu Law

 Hindu Law - Joint Family or co-parcenery property - Joint family or co-parcenery property is that in which every coparcener has a joint interest and a joint possession - A Hindu, even if he be joint, may possess separate property - Such property belongs exclusively to him - No other member of the co-parcenary not even his male issue, acquire any interest by birth. 2009(4) Civil Court Cases 692 (M.P.)

 Hindu Law - Self acquired property - A father who is joint with his sons may sell his self acquired property, even though such property may be immovable. 2009(4) Civil Court Cases 692 (M.P.)

Hindu Marriage Act, 1955

 Hindu Marriage Act, 1955, S.13, Evidence Act, 1872, Ss.45, 112 - Divorce - DNA test - Appellate Court cannot order DNA test when there was no such prayer made during the pendency of the divorce proceedings in trial Court. 2009(4) Civil Court Cases 622 (S.C.)

 Hindu Marriage Act, 1955, S.13, Evidence Act, 1872, Ss.45, 112 - Divorce - DNA test - Cannot be ordered in absence of allegation that birth of child was as a consequence of illicit relationship of wife with some third person. 2009(4) Civil Court Cases 622 (S.C.)

 Hindu Marriage Act, 1955, S.13(1)(ia) - Divorce - Cruelty - Plea of husband that wife wanted him to be separate in mess and residence from his natal family - Not a cruelty in absence of evidence that wife treated the husband with cruelty due to unsatisfied desire on her part followed up by any act of reprisal. 2009(4) Civil Court Cases 671 (P&H)

 Hindu Marriage Act, 1955, S.13(1)(ib) - Divorce - Desertion - Plea by wife that she was turned out of the matrimonial house after having been belavoured by the husband and members of his family and that she is ready to accompany husband provided he provides security for her safety - Offer made by wife was a mere camouflage and she was not actually inclined to accompany the husband - Wife did not file a plea u/s 9 of the Act for restitution of conjugal rights - It is apparent from the attitude of wife that she is staying away from the matrimonial house without any reasonable cause. 2009(4) Civil Court Cases 671 (P&H)

 Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - Petition filed during pendency of proceedings for transfer of divorce petition - Parties living separately for the last more than 4 years - No chance of reconciliation between them - Parties agreed to dissolve their marriage by mutual consent without any coercion or undue influence - Decree for divorce by mutual consent granted. 2009(4) Civil Court Cases 616 (S.C.)

 Hindu Marriage Act, 1955, S.13-B - Divorce by mutual consent - Petition filed during pendency of transfer petition filed by husband for transfer of criminal cases initiated by wife and a petition filed by wife for transfer of divorce petition - Parties amicably settled all their disputes and are keen to put a quietus to all litigations between them so that they may live peacefully - Divorce by mutual consent granted - All criminal proceedings initiated by wife quashed. 2009(4) Civil Court Cases 690 (S.C.)

 Hindu Marriage Act, 1955, S.24, Hindu Adoptions and Maintenance Act, 1956, S.26 - Minor child - Interim maintenance can be allowed to minor child in proceeding for restitution of conjugal rights in view of S.26 of Hindu Adoptions and Maintenance Act - Application filed u/s 24 Hindu Marriage Act not sufficient to refuse maintenance to child - It is the substance and not the form which is material while considering prayer for interim maintenance. 2009(4) Civil Court Cases 679 (Orissa) (DB)

 Hindu Marriage Act, 1955, S.24 - Interim maintenance - Payable date - Parties living separately and petitioner having no independent source of income - Order should have been passed for payment of interim maintenance from date of appearance of husband and not from date of order. 2009(4) Civil Court Cases 679 (Orissa) (DB)

 Hindu Marriage Act, 1955, S.25 - Wife has no right to continue in possession of the property, which ceased to be a matrimonial home after the divorce except where the decree for divorce itself spells out a right by a matrimonial settlement. 2009(4) Civil Court Cases 762 (P&H)

Limitation Act, 1963

 Limitation Act, 1963, S.14 - Applicability of the provision - Prior and subsequent proceedings should be civil proceedings prosecuted by the same party - Prior proceeding was prosecuted with due diligence and in good faith - Failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature - Earlier proceedings and the latter proceeding must relate to the same matter and both the proceedings are in a court. 2009(4) Civil Court Cases 636 (Allahabad)

 Limitation Act, 1963, S.14 - Scope - Provision provides protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed - An element of mistake is inherent in invocation of the provision. 2009(4) Civil Court Cases 636 (Allahabad)

 Limitation Act, 1963, Art.76 - Defamation - Suit for damages - Limitation - Suit is to be filed within one year of making the defamatory statement. 2009(4) Civil Court Cases 812 (Delhi)

Negotiable Instruments Act, 1881

 Negotiable Instruments Act, 1881, Ss.4, 87 - Pronote - Material alterations - Over-writings of Figure 62 at point A and figure 31 at point C and words Sixty two at point B and words Thirty one at Point D - Not explained by plaintiff - Over-writings not bearing the thumb impression of the borrower or the signatures of the scribe - Unauthorised material alterations renders the instruments void - It cannot be enforced in Court of law. 2009(4) Civil Court Cases 625 (P&H)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Dismissal in default - A party should not suffer because of the negligence on the part of his counsel - Order of dismissal set aside. 2009(4) Civil Court Cases 677 (P&H)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Dismissal in default - It would be too harsh to non suit appellant merely for his non appearance on one date. 2009(4) Civil Court Cases 677 (P&H)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Jurisdiction - No part of transaction took place at the residence of complainant and there was no stipulation that payment was to be made at place of residence of complainant, such mere residence of complainant does not confer jurisdiction on Court at place of residence of complainant. 2009(4) Civil Court Cases 757 (Kerala)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Communicated addressed to the accused, number of cheque, date, amount and name of bank mentioned, reason for return of cheque as "insufficient funds" mentioned, a request made to make the payment and a right reserved to initiate legal action in case of non payment - Held, communication shows that all the ingredients of a notice of demand are made out. 2009(4) Civil Court Cases 684 (Delhi)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Presentation of cheque for the second time - Held, if dishonour of cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. 2009(4) Civil Court Cases 684 (Delhi)

 Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, Ss.45, 73 - Dishonour of cheque - Comparison of handwriting by expert as body of cheque filled in by another person - Accused is entitled to have cheque examined by an expert. 2009(4) Civil Court Cases 658 (Rajasthan)

 Negotiable Instruments Act, 1881, Ss.138, 142 - Dishonour of cheque - Complaint filed by Manager of firm in his personal capacity - Manager or authorized representative can file complaint on behalf of the payee or the holder in due course but cannot file complaint in his personal capacity - A persona can be authorized to initiate criminal prosecution on behalf of the firm, but right to initiate criminal prosecution cannot be transferred in favour of anyone - Order dismissing complaint by holding that complaint is not maintainable, upheld. 2009(4) Civil Court Cases 645 (Delhi)

 Negotiable Instruments Act, 1881, Ss.138, 147 - Dishonour of cheque - Payment made - Complainant not agreeable - Held, even if cheque amount is paid it does not absolve accused of criminal offence if complainant is not agreeable to the compromise. 2009(4) Civil Court Cases 766 (Rajasthan)

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(4) Civil Court Cases 657 (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(4) Civil Court Cases 748 (S.C.)

 Rent & Eviction - Sub letting - Law as to - Legal position summarised : (i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent; (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting - However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant; (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person; (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession; (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises; (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than t enant was in exclusive possession of the premises - A presumption of sub-letting may then be raised and would amount to proof unless rebutted. 2009(4) Civil Court Cases 777 (S.C.)

 Rent & Eviction - Sub letting - Partnership - The thrust is to find out as to who is in legal possession of the premises - So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub letting. 2009(4) Civil Court Cases 777 (S.C.)

 Rent & Eviction - Sub letting - Pleading and proof - Partnership when drawn to conceal the real transaction of sub letting then Court is required to tear the veil of partnership to find out the nature of transaction entered into by the tenant - Held, in such circumstances the evidence let in by landlord cannot be ignored on the ground that there is some variance between pleading and proof. 2009(4) Civil Court Cases 777 (S.C.)

 Rent & Eviction - Sub letting - Pleading - Sub letting may be outwardly a deceptive arrangement and landlord may not come to know of true facts - Held, pleadings in such matters ought not to be construed too technically - True test is to see whether the other side has been taken by surprise or prejudiced. 2009(4) Civil Court Cases 777 (S.C.)

Revenue entries

 Revenue entries - Entries in revenue record are not entries of title as such they do not confer any right in favour of the appellant. 2009(4) Civil Court Cases 729 (P&H)

Revenue record

 Revenue record - Long standing entry - Cannot be cancelled without hearing the person in whose name the entry stands. 2009(4) Civil Court Cases 764 (Allahabad)

Specific Relief Act, 1963

 Specific Relief Act, 1963, Ss.10 & 20 - Specific performance - Ss.10 & 20 deal with discretion to be exercised by Court while decreeing the suit - Both the provisions do not in any way prohibit taking cognizance of suit by Civil Court. 2009(4) Civil Court Cases 772 (Bombay)

 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(4) Civil Court Cases 704 (S.C.)

Stamp Act, 1899

 Stamp Act, 1899, S.33 - Photocopy - Impounding - Photocopy of a document is not an instrument as such cannot be impounded and assessed to stamp duty - May be, Court below agreed to receive the said document as secondary evidence, but that does not mean that the same can be impounded. 2009(4) Civil Court Cases 635 (A.P.)

 Stamp Act, 1899, S.36 - Once a document is admitted in evidence, it is not permissible to the Court whether it is a Court of Appeal or Trial Court, to reject it on the ground that it has not been duly stamped. 2009(4) Civil Court Cases 692 (M.P.)

Succession Act, 1963

 Succession Act, 1963, Ss.70, 63(c) - Will - Revocation - Will revoked by registered cancellation deed - Once the will or codicil can be revoked by burning, tearing or otherwise destroying, it cannot be said that provision of S.63(c) of the Act is to be read into S.70 to prove the revocation. 2009(4) Civil Court Cases 716 (P&H)

Transfer of Property Act, 1882

 Transfer of Property Act, 1882, Ss.54, 55 - Sale deed - Sham transaction - Sale deed duly registered but neither possession delivered nor sale deed given to vendee - Vendees not present at the time of registration of sale deed - Held, sale was a sham transaction - Mere registration of sale deed cannot operate to pass title to the vendee or to pass any interest to them in the property purported to have been passed to him. 2009(4) Civil Court Cases 736 (P&H)

 Transfer of Property Act, 1882, S.55 - It is documents of title which must be produced for examination by the buyer - So far enquiry regarding clearance or exemption from the Endowment Department is concerned the same is not a document of title relating to the property which would benefit the buyer for examination for the purpose of completing the agreement for sale as such S.55 of the Act is not applicable in such an event. 2009(4) Civil Court Cases 650 (S.C.)

 Transfer of Property Act, 1882, S.55 - Provision of S.55 of the Act becomes applicable only in the absence of the contract to the contrary. 2009(4) Civil Court Cases 650 (S.C.)

Will

 Will - Mohammedan law - Under the Mohammedan Law Will can be either oral or can be in writing - However, when a Will is reduced to writing, the same standard of proof as contemplated by Evidence Act, is required. 2009(4) Civil Court Cases 797 (A.P.)

 Will - Presence of beneficiary - No proof as to participation of beneficiary in execution of Will - Mere presence of beneficiary is not a suspicious circumstance. 2009(4) Civil Court Cases 716 (P&H)

 Will - Unregistered - Not a suspicious circumstance. 2009(4) Civil Court Cases 716 (P&H)