Ajay R. Singh, Advocate
Additional evidence – Judgment already pronounced by Appellate Court – Production of additional evidence when no lis is pending, impermissible : CPC Order 41 Rule 27
If the Appellate Court requires any document to be produced or any witness to be examined to enable it to “pronounce judgment” or for any other substantial cause, it may allow such evidence or document to be produced or witness to be examined. In the facts of the instant case, however, “judgment” of the Appellate Court had already been “pronounced” and even if there was “any substantial cause”, such cause was required to be present only when the lis was pending. There is no scope for introduction of additional evidence at this belated stage when no lis is pending. If one has to accept the contention of the petitioner that even at this stage, additional evidence can be introduced before the Appellate Court, it would simply mean that a litigant can be allowed to keep his/her lis pending indefinitely before a Court of law by this process. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity.
Mahavir Properties Pvt. Ltd. v. Sri Sri Iswar Gajalakshmi Mata Thakurani and others: AIR 2019 Cal 1.
Non-compliance of order of Municipal Assessment Tribunal – On ground that appeal against that order is pending – Not permissible ALLIED LAWS
Till order of court is varied or modified, it remains valid and subsisting and has to be complied with
In the present case it is an admitted position that the order of the Municipal Assessment Tribunal dated 13th October, 2014, is a final order. The revisional application under Article 227 of the Constitution of India cannot be held by any stretch of imagination as a continuation of the original proceeding. By the order of the Municipal Assessment Tribunal, the annual valuation of the premises-in-question was reduced from ₹ 48,880/- to ₹ 23,850/-. If this valid and subsisting order is allowed to remain in abeyance till such time the revisional application is finally heard and disposed of, it would simply render nugatory the due process in law which was required to be followed by the parties in the instant case. It will also mean that no order passed by any competent legal forum which has attained finality, shall be given effect to or complied with by the concerned authority for an indefinite period of time on the specious plea that the said authority has decided to seek remedies which are essentially discretionary in nature. It would have been a different matter altogether had there been a substantive statutory right of appeal by the aggrieved party subsisting against the order of the Municipal Assessment Tribunal and the period of limitation for filing such an appeal was not over.
That apart, no order of stay has been passed by the Revisional Court in respect of that application.
It is quite well-settled in law that till an order passed by a competent Court or forum is set aside and/or stayed and/or varied and/or modified, the said order remains valid and subsisting and is required to be complied with, both in law and in spirit. If a stand is taken by any person that he/she is unable to comply with a valid and subsisting order simply because an appeal is pending before a higher forum, it would render the concept of adherence to due process of law to a state of absolute farce. This is neither desirable nor acceptable nor permissible.
Subrata Sen v. Kolkata Municipal Corporation and Others AIR 2019 Calcutta 32
Doctrine of promissory estoppels – Is rule of equity flowing out fairness, striking on behaviour deficient in good faith: Evidence Act section 115
The doctrine of legitimate expectation is invoked when a person may have been treated in a certain way by an administrative authority although he has no legal right in private law to receive such treatment. In Bannari Amman Sugars Ltd. vs. Commercial Tax Officer and Others while explaining this concept the Supreme observed that the expectation may arise either from a representation or promise made by the authority, including an implied representation or from consistent past practice. Legitimate expectation can provide sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the Court to apply for judicial review. It is generally agreed that “legitimate expectation” gives the applicant sufficient locus standi for judicial review. The doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a person’s legitimate expectation is not fulfilled by taking of a particular decision, then the decision- maker is to justify the denial of such expectation by showing some overriding public interest. In the same line, we may also look at the doctrine of Promissory Estoppel which is a rule of equity flowing out of fairness, striking on behaviour deficient in good faith. While applying this concept, the Court ought to be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding. The doctrine is thus premised on conduct of a party making a representation to the other so as to enable him to arrange his affairs in such a manner as if the said representation would be acted upon.
In M/s. Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Others AIR 1979 SC 621 the Supreme Court while considering this concept also discussed the origins of the doctrine.
Hence, the doctrine of Promissory Estoppel would be applicable in a case where the appellant would suffer a detriment by acting on a representation made by the Government.
Dawa Phuti Bhutia and others v. State of Sikkim and others AIR 2019 Sikkim 1
Comparison of signatures – Opinion of handwriting expert – Necessity of – Court has discretion to invoke powers under S. 73 even in absence of opinion of such expert: Evidence Act Ss. 73, 47
Court has the power to exercise that authority to compare two deeds. Even to compare between a signature taken in the Court room with the other signature for purpose of coming to a decision on the handwriting, falls within the competence of the Court. The opinion of the handwriting expert under Section 47 of the Indian Evidence Act is a supplementary aid to the Court to have reassurance. It is always the discretion of the court whether it can come to an inference without any dilemma or doubt in respect of the handwriting or the signature. If the court is satisfied about its opinion, it cannot be held that the opinion is wrong only because the Court has exercised that power without referring to the handwriting expert. That power has been provided as handy to a decision. When the court finds it difficult to come to a conclusive decision, the Court may on its motion or having been asked by either of the parties may refer the matter for opinion of the handwriting expert under Section 47 of the Indian Evidence Act. It is well-entrenched that it is always prudent for the Court to take the opinion of the handwriting expert, but this is not an inflexible rule. The Court can also exercise its own discretion to come to an opinion.
Smt. Parul Das and others v. Smt. Amiya Prava Das and Another AIR 2019 Tripura 1
Appeal – Delay and laches – Fraud vitiates every action and cannot be kept under carpet on ground that action challenged was belated, more so in case of reasonable explanation for such delay
Employee was guilty of committing fraudulent acts in getting his promotion to the post of Executive Engineer which was also contrary to the Service Rules.
The Association had submitted a representation to the then Chief Minister. Going by the nature of allegations, the Chief Minister rightly acted thereupon and referred the matter to a Committee which, after examining the matter, had also given its report stating that the promotion of respondent No.1 was against the Rules. This provides reasonable explanation for delay, if any. Suit was filed nine years after promotion of employee. It was virtually a case of fraud, at least on three counts. First, by creating ex-cadre post of Executive Engineer only for employee and giving him that post when he was much junior to many others. Second, encadrement of employee as Executive Engineer by showing that there were thirteen posts when, in fact, there were only ten posts of Executive Engineer on that date. This was done obviously with the purpose of accommodating him. Third, the promotion was given when employee was not even eligible as per Rules as he had not put in minimum service of five years. Fraud vitiates every action and cannot be kept under the carpet on the ground that the action challenged was belated, more so when there is a reasonable explanation for such delay.
Ajit Kr. Bhuyan and Others v. Debajit Das and Others AIR 2019 Supreme Court 492
Dishonour of cheque – Complaint filed based on second statutory notice – Is maintainable: Negotiable Instruments Act, S.138
The three cheques were presented for collection and the same were dishonoured and returned with the endorsement “insufficient funds”. The appellant-complainant had issued first notice to the respondent(s) on 31-8-2009 demanding the repayment of the amount. The cheques were again presented and returned with the endorsement “insufficient funds”. The appellant had issued a statutory notice on 25-1-2010 to the respondent(s). Since the cheque amount was not being paid, the appellant-complainant had filed the complaint u/s. 138 of the Negotiable Instruments Act based on the second statutory notice dated 25-1-2010.
The issue involved whether the prosecution based upon second or successive dishonour of the cheque is permissible or not, is no longer res integra. In Sadanandan’s case it was held that while second and successive presentation of the cheque is legally permissible so long as such presentation is within the period of six months or the validity of the cheque whichever is earlier, the second or subsequent dishonour of the cheque would not entitle the holder/payee to issue a statutory notice to the drawer nor would it entitle him to institute legal proceedings against the drawer in the event he fails to arrange the payment. The correctness of the decision in Sadanandan’s case was doubted and referred to the Larger Bench.
Three Judge Bench of this Court in 2013 ((1) SCC 177, para 27 and 31) MSR Leathers v. S. Palaniappan and Another held that there is nothing in the provisions of section 138 of the Act that forbids the holder of the Cheque to make successive presentation of the cheque and institute the criminal complaint based on the second or successive dishonour of the cheque on its presentation.
M/s. Sicagen India Ltd. v. Mahindra Vadineni and Others AIR 2019 Supreme Court 502