Ajay R. Singh, Advocate
1. Civil Procedure Code, O.41, R.22 – Cross objection – Failure to consider – Effect – Cross objections have all the trappings of a regular appeal and therefore, must be considered in entirety – matter remanded for fresh adjudication
In an appeal filed by authority against enhancement of compensation for acquisition of land, landowners had filed cross objections claiming further enhancement. The High Court failed to consider issued raised in cross objections. The High Court was under an obligation to consider the cross objections filed by the Appellants herein. Cross objections have all the trappings of a regular appeal and therefore, must be considered in entirety. Since such an obligation was not discharged while passing the order, the matter is fit to be remanded to the High Court for fresh adjudication on the grounds raised by the Appellants herein. Dheeraj Singh v. Greater Noida Industrial Development Authority and others.:AIR 2023 SUPREME COURT 3110.
2. U. P. Municipalities Act of 1916, Ss. 291, 173A – Recovery Certificate – Rent, not being tax, cannot be recovered as arrears of land revenue u/s 173-A of the Act Reading of Section 292 of the Act, 1916 indicates that any arrears of rent for a shop from a person in possession of the shop after the same having been allotted to him by the Municipality, can be recovered only in the manner prescribed in Chapter-VI. Rent is not a tax and, therefore, it cannot be recovered as arrears of land revenue u/s 173-A of the Act, 1916. Sections 167 and 168 of the Act, 1916 provide that for any arrears due on a person, Municipality shall raise a bill specifying the period for which and property in respect of which the same is claimed, the liability or penalty enforceable in default of payment and time within which an appeal may be preferred as provided u/s 161. In case the alleged defaulter fails to satisfy the bill raised by the Municipality within 15 days from its presentation, the Municipality shall serve a demand notice on the defaulter in the form set forth in Schedule-IV of the Act, 1916. A perusal of Schedule-IV indicates that 15 days is to be provided to the defaulter for payment of the alleged dues. In case the defaulter fails to satisfy the demand notice a warrant, signed by the President/Executive Officer or any other person on whom such power has been delegated by the Municipality is to be issued by the Municipality in Form as prescribed in Schedule-V for recovery of the dues by distress and sale of the movable properties of the defaulter. The manner of executing warrant is provided u/s 170, 171, 172 of the Act, 1916. There is no provision in the Act, 1916 which empowers the Municipality to recover arrears of rent for a shop as arrears of land revenue through a recovery citation issued by the Collector. Manjeet Singh and others v. State of U.P. and others. AIR 2023 ALLAHABAD 179.
3. Evidence Act of 1872, Ss. 45, 47- Expert evidence – Sending promissory note to handwriting expert for comparison without filing authentic document containing admitted signature of defendant – Is not permissible. In the instant case, plaintiff had filed the suit for recovery of money on the basis of promissory note. The defendant pleaded the forgery of promissory note as well as part payment endorsements thereby prayed to send it to the handwriting expert to compare another pro-note without revenue stamp, vakalat and W.S. which were enclosed to the affidavit filed in support of the petition. Held, unless the defendant files the authentic documents containing his admitted signatures, questions of sending the promissory note to the handwriting expert for comparison does not arise. Promissory note was of 2002 and filed in 2017. The signatures on vakalat and W.S. cannot be termed as admitted signatures and the pro –note enclosed to the affidavit in support of the petition cannot be called as authentic documents, containing admitted signature. The defendant did not file any authentic documents containing the admitted signatures for comparison. The order of the trial Court dismissing the application to send the promissory note to handwriting experts for comparison was upheld. Thota Ravi Babu v. Dodda Lakshmi Narasamma: AIR 2023 ANDHRA PRADESH 113
4. Specific Relief Act of 1963, S. 38- Permanent injunction and damages – Plaintiff seeking to restrain defendants from sending any defamatory emails Case of plaintiff is that alleged defamatory emails sent by defendants to Chairman of National Skill Development Corporation with CC to all clients and posts on their Facebook wall resulted in their defamation, loss of reputation and loss of business account of many clients. Evidence showing that there were outstanding amounts due from plaintiff for which defendants had been agitating Nowhere in pleadings or in evidence did plaintiff or its witnesses state that amounts were not due. Therefore, assertion of defendant that there was outstanding amount which had not been paid by plaintiff Company, cannot be termed to be false or per se defamatory. Moreover, plaintiff filed suit for permanent injunction against only one of defendants and failed to explain any act of defamation by second defendant or his connivance with first defendant. Held, plaintiff was not entitled to any damages India Skills Pvt. Ltd. v. Neeraj Kumar Pathak AIR 2023 DELHI 204.
5. Specific Relief Act of 1963, Ss.34, 38 – Suit for declaration and permanent injunction – Fraudulent execution of sale deed and POA
It is the case of plaintiff that Defendant allegedly taking advantage of illiteracy of plaintiff executed forged POA. On basis of POA, executed sale deed in favour of his son. Further not a single penny was paid to him and the sale deed dated 14/05/2013 was executed without any consideration amount. The defendant No.2 could have produced his bank account statement to show that an amount of Rs.5,50,000/- was paid to the defendant No.1. The defendant No.1 could have produced his bank account statement to show that the said consideration amount was passed on to the plaintiff. Nothing of that sort was done by the defendants. Merely because a registered sale-deed was executed would not mean that even the contents of the same would stand proved. Since the plaintiff never appeared before the Sub Registrar, therefore there was no opportunity for the Sub Registrar to verify from the plaintiff with regard to his willingness and consent to execute the sale-deed or not. The defendant No.1 has not explained as to what prompted him to execute the sale-deed in favour of his own son only. This conduct of the defendant No.1 clearly establishes that his only intention was to somehow grab the property of the plaintiff. T.R. (Tulsiram) Kori v. Raja Singh AIR 2023 MADHYA PRADESH 113.
6. Passports Act of 1967, S.5 – Renewal of passport. Non consideration of application on ground of pendency of FIR, due to family dispute, a false com-plaint was lodged against applicant, based on which, case had been registered. Mere pendency of FIR is not a bar for authority to issue passport. Passport authority was directed to consider petitioner’s passport application and take an appropriate decision on it in accordance with law. Seema v. Regional Passport Officer and another. AIR 2023 MADRAS 241.
7. Constitution of India, Art. 226 – Tender Rejection- On ground that Tax Audit Reports did not bear Unique Document Identification Number (UDIN)
Bidders were required to submit audited balance-sheet and profit and loss account statement, apart from certificate issued by CA to establish minimum turnover required of Rs.5.00 Crores on an average for past three years. Notification issued by ICAI provided that Tax Audit Reports were mandatorily required to have UDIN – Tax Audit Reports submitted by petitioner, did not have the UDIN – Authenticity of Tax Audit Reports produced by petitioner along with bids could not be verified and established. Rejection of tender was proper.: M/s. Patelpurta Agro Farm v. State of Uttarakhand and others. AIR 2023 UTTARAKHAND 125.
8. Constitution of India, Art. 226 – Writ jurisdiction – When can be exercised
While entertaining an objection as to the maintainability of a writ petition under Art. 226, the Court should bear in mind the fact that the power to issue prerogative writs under Art. 226 is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. Such plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is so arbitrary and unreasonable so as to violate the constitutional mandate or Art. 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. Therefore, while exercising its jurisdiction under Art. 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Art. 14. The jurisdiction under Art. 226 is a valuable constitutional safeguard against an arbitrary exercise of State power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well settled that the jurisdiction under Art. 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely be- cause in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Art. 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked. Tripurari Prasad Singh v. State of Bihar and others. AIR 2023(NOC) 628 (PAT).
9. Registration Act of 1908, S. 17; Transfer of Property Act of 1882, Ss. 54, 122: Admissibility of document – Deed was executed gratuitously for grant of easement – Said deed does not require registration
As per section 54 of the Transfer of Property Act, there is no sale unless transfer of ownership in exchange for a price paid or promised to be paid or partly paid or partly promised to be paid takes place. Therefore, in the impugned document there is no ‘transfer of title/ownership’ of the property as is contemplated for sale under section 54 or gift under section 122 of the Transfer of property Act, 1882. The disputed deed would show that it was executed for grant of an easement only, and it was a gratuitous act. The Hon’ble High Court of Madras in Musunoori Satyanarayana Murti v. Chakka Lakshmayya and others, AIR 1929 Mad 79, held that creation of right of easement by grant is not a transfer of ownership as contemplated by section 54 of Transfer of Property Act, and the easement by grant may be created by oral agreement and it may be gratuitous. There is nothing in law which necessitate the creation of an easement being evidenced by registered document. Hence the impugned document in the case, does not require registration. Therefore, it is admissible in evidence. C. Sreemath v. Narra Audilakshmi. AIR 2023 ANDHRA PRADESH 102.
10. Constitution of India, Arts. 21, 226 – Right to life Safety measures to be adopted in construction of super high-rise buildings It can never be countenanced that innocent lives are lost by accidents caused by objects falling from suspended crane located at enormous height, which person on ground may ordinarily not notice, as one installed at site of respondent. Right of person to move freely, in places which are not actual construction sites, if are threatened by fear of being killed or hurt, this would certainly amount to violation of one’s fundamental right to life and livelihood Parties agreeable to constitution of Committee to formulate and implement safety norms in interest of petitioner and third parties Committee, constituted accordingly. Lokhandwala Residency Towers Cooperative Housing Society Ltd. v. Municipal Corporation of Greater Mumbai and another. AIR 2023 BOMBAY 201.
11. Civil Procedure Code of 1908, O. 20 R. 18: Hindu Succession Act of 1956, S. 8. Preliminary decree of partition – joint family property Suit property devolved upon legal heirs of de- ceased namely his wife, two sons and daughter after his demise. Wife relinquished her share in favour of one of sons making him entitled to 50% share in suit property and preliminary decree to that effect was passed. The same was challenged by other son on ground that suit property was joint family property and co- parcener cannot relinquish her share without partition. The Court observed that there was no pleading in either plaint or written statements that coparcenary/HUF ever existed amongst parties or that suit property was coparcenary property. Merely because assets of deceased came to be shared in certain manner by all his legal heirs after his demise, would not make property either joint family or HUF property. It was admitted unequivocally that it was individual property of deceased . Respective shares in hands of all legal heirs became their individual property conferring right on each one of them to deal with their respective shares in manner they desired In absence of evidence in support of basic premise of challenge that properties were HUF or Coparcenary, relinquishment made in favour of another son cannot be faulted with Held, preliminary decree was rightly passed. In the present case, the basic premise of challenge was that the properties were HUF/ coparcenary, but there was neither an iota of pleadings or documents or evidence to show that the property in question was an HUF/coparcenary property. When this imaginary foundation of alleged HUF never existed, the claim of the appellant that the super structure must necessarily collapse, is miscounted and misplaced. Preliminary decree was rightly passed. Sanjay Bhatia v. Rajive Bhatia and others. AIR 2023 DELHI 181.
12. Civil Procedure Code of 1908, O. 7 R. 11(d)- Rejection of plaint- Suit barred by law – Suit for cancellation of sale deed Whenever a document is registered, the date of registration becomes the date of deemed knowledge. In other cases, where a fact could be discovered by due diligence, then deemed knowledge would be attributed to the plaintiff, because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. It is held that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. The plaintiffs in the plaint, is seeking setting aside of the registered sale deeds. Thus, by a clever drafting and in order to see that the limitation period gets frustrated, the suit has been instituted on a sole reason of obtaining information on 3.1.2012, and they were kept in dark since 2002. Thus, it cannot be said that the plaintiffs have discovered the fact of execution of the registered sale on due diligence by obtaining such information after a period of 10 years. Hence, the suit, which is otherwise barred under the provisions of Arts. 58 and 59 of the Limitation Act, by way of clever drafting and by devising the cause action, by alleging fraud an cheating; the suit only appears to have been instituted to frustrate the rights of the defendants. Therefore rejection of plaint was proper. Shantilal Shankarbhai Patel (Dead) By LR.s. V. Patel Dalsukhbhai Nanabhai (Dead) By LR.s.; AIR 2023 GUJARAT 102.
13. Specific Relief Act of 1963, S. 16(C) – Suit for specific performance – Readiness and willingness – Difference between – While readiness means capacity of plaintiff to perform contract which would include his financial position, willingness relates to conduct of plaintiff. For the purpose of S. 16(c) of the Specific Relief Act, to prove readiness and willingness the plaintiff, has to demonstrate on record by documents, his financial capacity to make payment of the balance consideration, which can be demonstrated either from the bank’s statement of the plaintiff for the duration of the currency of the agreement or the income tax returns, or any other means which would indicate the capacity of the plaintiff to arrange funds for payment of the balance consideration, and so also his conduct should indicate willingness to pay the consideration as per the terms of the contract and so also to perform the essential terms thereof. Sau. Sumanbai Pandurang Petkar v. Suresh Laturuji Ramteke. AIR 2023 (NOC) 546 (BOM)