***

Membership -- Company -- Person not entered in register of members can still maintain petition under Sections 397 and 398 if company’s conduct recognises his shareholding interest -- Entry in register not sole mode of acquiring membership -- Jurisdiction under Sections 397 and 398 is equitable in nature -- Substantive rights cannot be defeated by technicalities.

***

Membership -- Company -- Requirement of agreement in writing and entry in register introduced to prevent fraudulent inclusion of names -- Not intended to make entry in register sole or exclusive mode of acquiring membership.

***

A. Companies Act, 1956 (1 of 1956), Sections 2(27), 41, 397, 398 and 399 -- Oppression and mismanagement -- Maintainability -- Meaning of “member” -- Respondent invested substantial amounts in company and was appointed Managing Director -- Company accepted and utilised share application money and consistently recognised respondent’s shareholding interest though his name was not entered in the register of members -- Entry in register not sole mode of acquiring membership -- Jurisdiction under Sections 397 and 398 being equitable in character, substantive rights cannot be defeated through technicalities -- Respondent rightly treated as deemed member entitled to maintain petition under Sections 397 and 398 -- Appeals dismissed.

(Paras 20 to 31)

B. Companies Act, 1956 (1 of 1956), Section 41(2) -- Membership -- Agreement in writing and entry in register of members -- Scope -- Requirement introduced by Amendment Act of 1960 intended to ensure reliable proof of consent and prevent fraudulent inclusion of names in register -- Not intended to impose entry in register as sole or exclusive mode of acquiring membership.

(Paras 21)

***

Anticipatory bail -- Fraudulent opening of bank account -- Allegation that accused fraudulently opened bank account in complainant’s name using Aadhaar Card and PAN Card without consent -- Prosecution case resting primarily on documentary evidence -- Custodial interrogation held not necessary -- Accused entitled to anticipatory bail.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 482 --  Indian Penal Code, 1860, Sections 419, 420, 120-B -- Anticipatory bail -- Impersonation and cheating -- Allegation that appellants used complainant’s Aadhaar Card and PAN Card for opening bank account without consent -- Dispute between close relatives and multiple litigations pending between parties -- Prosecution case based mainly on documentary evidence -- Exact role of accused to be determined during trial on appreciation of evidence -- Custodial interrogation not required -- Orders rejecting anticipatory bail set aside -- Appellants directed to be released on anticipatory bail subject to conditions.

(Paras 4-6)

***

Panchayat election -- False declaration -- Concealment of pending criminal case in nomination form amounts to false declaration and valid ground for annulment of election.

***

Panchayat election -- Disqualification -- Six years’ bar from contesting elections under Section 146(2) of H.P. Panchayati Raj Act held neither arbitrary nor disproportionate.

***

Himachal Pradesh Panchayati Raj Act, 1994 (4 of 1994), Sections 122(1)(n), 131, 146(1), 146(2) -- Constitution of India, Articles 14, 21, 226 -- Panchayat election -- False declaration in nomination form -- Concealment of pendency of criminal case -- Election of petitioner as Pardhan earlier set aside on ground of deliberate suppression of criminal antecedents -- Deputy Commissioner thereafter disqualified petitioner for six years under Section 146(2) -- Challenge to constitutional validity of Section 146(2) on ground that punishment was harsh, disproportionate and arbitrary for want of discretion to impose lesser penalty -- Rejected -- Held, disclosure of criminal antecedents in nomination form is mandatory and concealment thereof constitutes false declaration attracting statutory disqualification --  Six years’ disqualification cannot be termed arbitrary or disproportionate as legislative intent is to ensure exclusion of disqualified candidate from at least the next Panchayat election cycle -- Provision enacted to preserve purity, transparency and accountability in electoral process -- Section 146(2) constitutionally valid.

(Paras 11 to 19)

***

Additional documents -- Public documents -- Certified copies of Jamabandi and mutations being public documents do not automatically entitle party to produce same at any stage of proceedings -- Requirement of due diligence must still be satisfied.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 8 Rule 1-A, Section 151 -- Additional documents -- Belated application -- Defendant sought permission to place on record certified copies of Jamabandi for year 1973-74 and mutation Nos.236 and 239 after closure of evidence and at stage of final arguments -- Application did not disclose any reason preventing earlier production of documents -- Documents being public documents were within knowledge and accessible to defendant -- Due diligence neither pleaded nor established -- Belated application rightly rejected.

(Paras 15 to 17)

***

Pleadings -- Material facts and evidence -- Pleadings must contain material facts and not evidence -- Facts constituting proof need not be specifically pleaded.

***

Pleading and proof -- Distinction -- Pleading relates to assertion of material facts constituting cause of action -- Proof relates to evidence led to establish such facts.

***

Oral family arrangement – Validity -- A family arrangement can be entered into even by way of an unregistered oral agreement and such family settlements are enforced by Courts as they are governed by special equity principles.

***

Share certificates relating to land -- Interest in land includes building standing thereon.

***

Pleadings and proof -- Eviction suit -- Plaintiff pleaded herself co-landlord and statutory grounds of eviction -- Evidence regarding family arrangement, share certificates and bona fide requirement adduced during trial -- Material facts sufficiently pleaded and proved -- High Court erred in interfering with concurrent findings on alleged absence of pleadings.

***

Comparative hardship -- Tenant acquired alternative accommodation -- Sale of alternate premises during pendency of suit indicative of attempt to defeat eviction claim -- Greater hardship held in favour of landlord.

***

Co-owner landlord -- Share certificates jointly standing in names of plaintiff and siblings -- Co-owner entitled to receive rent falls within definition of “landlord” under Rent Act -- Competent to maintain eviction proceedings.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 6 Rule 1 -- Pleadings -- Order VI Rule 1 of the Code of Civil Procedure states that pleading means ‘Plaint or Written Statement’ -- A plaint is the statement of claim in which the plaintiff sets out his cause of action with all requisite particulars -- A written statement, on the other hand, is the defendant’s response, wherein he deals with each material fact alleged by the plaintiff and sets out any new facts in his favour, together with such objections as he wishes to raise to the claim.

-- The object of pleadings is to assist the Court and the parties in the adjudication of disputes. The intent is to provide fair notice of the opponent’s case, to ascertain with precision the points of agreement and divergence and thereby to bring the parties to definite issues.

-- Accordingly, pleadings of the parties form the foundation of their case as they are the statement of facts in writing drawn up and filed in a Court by each party stating therein what his/her contention shall be at the trial.

Consequently, the requisites of a good and sufficient pleading are that it should contain (1) a statement of facts, not law, (2) material facts only, (3) facts, not evidence and (4) facts stated in a summary form.

(Para 26-31)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 6 Rule 2 -- Relevant facts – Facts in issue -- Every pleading must contain material facts but not the evidence by which those facts are to be proved -- The material facts on which a party relies are called Facta Probanda, i.e. the facts to be proved and they are required to be stated in the pleadings -- The evidence or facts by which Facta Probanda are to be proved are called Facta Probantia and these are not to be included in the pleadings -- Facta Probanda are not the facts in issue rather, they are the relevant facts which, when proved at trial, establish the facts in issue.

-- Though it is settled law that no evidence can be led on a plea not raised in the pleadings and no amount of evidence can cure a defect in pleadings, yet it is equally well settled that facts which are merely evidence of material facts should not themselves be pleaded.

-- Pleading and proof thus represent distinct stages in legal proceedings. Pleading is the formal assertion of material facts with the intent to define the case, whereas proof, by contrast, is the evidence adduced to establish those facts as true.

(Para 32)

C. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947), Sections 5(3), 13(1)(g), 13(1)(l), 13(2) -- Eviction suit -- Co-owner as landlord -- Appellant averred that she is a co-landlord along with her parents and siblings -- Sought possession on the grounds of bona fide need, relative hardship and the availability of alternative accommodation to the tenants – Appellant adduced evidence by way of affidavit, placing on record the requirements of her family, her own need, the family arrangement and the share certificates -- These documents and averments constituted evidence to establish the material facts pleaded and were not required to be set out in the plaint itself – Held, both the tests of pleading and proof stand satisfied -- Appellant, being the co-owner of the suit building was entitled to receive rent and thus fell squarely within the statutory definition of ‘landlord’ under the Act -- Appellant/ Plaintiff competent to seek eviction.

(Paras 36 to 46)

D. Transfer of Property Act, 1882, Sections 3, 8 -- Share certificates -- Interest in land and building -- Transfer or holding of interest in land includes things attached to earth including building standing thereon -- Share certificates relating to land held sufficient to establish co-ownership of building also.

(Paras 42 to 44)

E. Registration Act, 1908 (16 of 1908), Section 17 – Oral family arrangement -- A family arrangement can be entered into even by way of an unregistered oral agreement and such family settlements are enforced by Courts as they are governed by special equity principles -- Appellant held entitled to rely upon the oral family arrangement/settlement, as deposed in evidence, even in absence of a decree of partition between herself and her siblings, as it represents a subsequent development.

(Paras 48 to 50)

F. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Sections 13(1)(g), 13(2) -- Bona fide requirement -- Temporary occupation by landlord of another family flat during pendency of suit not fatal to claim -- Tenant cannot dictate suitability of accommodation to landlord -- Bona fide need of landlord established.

(Paras 51 to 53)

G. Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Sections 13(1)(g), 13(1)(l), 13(2) -- Comparative hardship -- Tenant having acquired alternate accommodation -- Sale of alternate premises during pendency of suit indicative of attempt to defeat eviction proceedings -- Greater hardship held to be caused to landlord if eviction refused -- Landlord in bona fide need would otherwise be compelled to purchase or secure alternate accommodation – Eviction restored.

(Paras 54 to 61)

***

Will -- Exclusion of natural heirs -- Mere exclusion of wife and children from inheritance not by itself a suspicious circumstance.

***

Order 41 Rule 31 CPC -- Non-framing of proper points for determination by First Appellate Court -- Effect -- Mere technical non-compliance not sufficient to vitiate judgment when Appellate Court has substantially complied with requirements of law by thoroughly considering evidence, rival contentions and recording reasons -- Judgment of First Appellate Court upheld.

***

Affidavit -- Evidentiary value -- Affidavit of attesting witnesses denying execution of Will -- Affidavit not substantive evidence unless deponent subjected to cross-examination in accordance with law.

***

A. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will -- Due execution and attestation -- One attesting witness examined -- Attesting witness specifically deposed that testator executed Will in his presence and both signed in presence of each other -- Requirement of proof of execution duly satisfied -- Concurrent findings upholding genuineness of Will affirmed.

(Paras 27 to 30)

B. Mutation entries -- Effect -- Mutation entries do not confer title and are only for fiscal purposes -- Mere mutation of property in favour of wife and children of deceased not affecting title flowing under validly executed Will.

(Para 31)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Will -- Suspicious circumstances -- Exclusion of natural heirs -- Mere exclusion of wife and children from inheritance not by itself suspicious circumstance -- Testator legally entitled to dispose of property according to his wishes.

(Paras 32 to 34)

D. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 31 -- First Appellate Court -- Non-framing of proper points for determination -- Substantial compliance -- Mere technical non-compliance with Order 41 Rule 31 CPC not sufficient to vitiate judgment where Appellate Court substantially complied with requirements by scrutinising evidence and assigning reasons -- Judgment held not suffering from illegality.

(Para 37)

E. Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Affidavit -- Evidentiary value -- Affidavit not substantive evidence unless deponent available for cross-examination -- Affidavits of attesting witnesses denying execution of Will filed even before filing of written statement and without Court notice -- Such affidavits rightly held unreliable and discarded.

(Para 38)

Circumstantial evidence -- Murder -- Death of wife in matrimonial home -- Medical evidence proving strangulation and not suicide -- Missing ornaments, ligature marks and injury on cheek inconsistent with hanging -- False defence through alleged suicide note -- Failure of husband to explain incriminating circumstances within special knowledge -- Conviction upheld.

***

Motive -- Murder -- Once prosecution establishes complete and unbroken chain of circumstances proving guilt of accused, failure to prove motive is not fatal to prosecution case.

***

A. Indian Penal Code, 1860 (45 of 1860), Sections 302, 201 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Circumstantial evidence -- Complete chain -- Deceased wife found dead inside matrimonial home -- Post-mortem revealing ligature marks around neck, fracture of hyoid bone and trachea and cause of death as asphyxia due to strangulation -- Trial Court and High Court rightly relying upon medical evidence and surrounding circumstances to conclude homicidal death -- Missing left ear-ring, right leg anklet and toe-rings held significant circumstance, as such articles were unlikely to go missing in case of suicidal hanging -- Fresh injury mark on cheek further corroborating prosecution case -- Conduct of accused in taking deceased to another private hospital despite first doctor declaring her dead also found incriminating -- Alleged suicide note not accepted and found to be part of false defence -- Circumstances cumulatively forming complete chain pointing only towards guilt of accused and excluding every hypothesis of innocence -- Conviction under Sections 302 and 201 IPC upheld.

(Paras 16, 18 to 20, 26)

B. Indian Penal Code, 1860 (45 of 1860), Sections 302, 201 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Unnatural death in matrimonial home – Facts within special knowledge -- Burden to explain -- Murder -- Appellant failed to furnish any satisfactory explanation in statement under Section 313 Cr.P.C. regarding circumstances leading to death of deceased -- Failure to discharge burden under Section 106 held to be additional link in chain of circumstances after prosecution established foundational facts.

(Paras 20 to 22)

C. Indian Penal Code, 1860 (45 of 1860), Sections 302, 201 -- Murder -- Circumstantial evidence -- Absence of proof of motive -- Effect -- Once prosecution establishes complete and unbroken chain of circumstances proving guilt of accused, failure to prove motive is not fatal to prosecution case.

(Para 23)

MACT -- Interest -- Rate of interest @ 7.5% per annum is reasonable and in accordance with settled judicial practice.

***

Motor Vehicles Act, 1988 (59 of 1988), Section 166 – Compensation in motor vehicular accident case – Interest – Held, rate of interest @ 7.5% per annum is reasonable and in accordance with settled judicial practice – Appellants held entitled to additional compensation of Rs.2,00,240/- – Enhanced amount directed to be paid with interest @ 7.5% per annum from the date of filing of claim petition till realization.

(Para 7)

Will -- Suspicious circumstances -- Attesting witnesses admitted that testator had not affixed thumb impression in their presence -- Unregistered Will executed three days prior to death of testator -- Natural heir excluded without explanation despite evidence of love and affection -- Space between signatures and heading “attesting witness” also found suspicious -- Will disbelieved.

***

Additional evidence at second appellate stage -- Prayer for comparison of thumb impressions appearing on Will and sale deed -- Rejected -- Plaintiffs failed to exercise due diligence.

***

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Proof of Will -- Unregistered Will -- Both attesting witnesses admitted in cross-examination that testator had not affixed thumb impression in their presence -- Moreover, there is no evidence to show that they had received personal acknowledgment from the testator qua the marking of the thumb impression of the testator on the Will -- Thus, due execution of the Will has not even been remotely proved.

(Para 12-17)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Proof of Will -- Unregistered Will – Suspicious circumstances -- Space between the signatures and the heading “attesting witness” typed was suspicious -- Deceased had love and affection with defendant, yet as per the said alleged Will, nothing has been given to him, who was to succeed to the property in its natural course being closest surviving heir -- Executing an unregistered Will on 17.02.1992 i.e., three days prior to his death which took place on 20.02.1992 is also highly suspicious – Both attesting witnesses admitted that testator had not affixed thumb impression in their presence -- Rendering the Will doubtful.

(Para 11-17)

C. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 27 and Section 151 -- Additional evidence at second appellate stage -- Application seeking comparison of thumb impressions on Will and sale deed -- Plaintiffs failed to exercise due diligence during trial -- Additional evidence held unnecessary, in view of findings regarding non-proof of execution and suspicious circumstances surrounding Will -- Application dismissed.

(Para 22)

Attachment of salary -- Execution -- Judgment debtor disclosed no movable or immovable property except one motorcycle -- Executing Court ordered attachment of 1/3rd of salary of judgment debtor employed as TTE in Railway Department for satisfaction of decree -- Order held in accordance with law.

***

Code of Civil Procedure, 1908, Order 21 Rule 41 and Section 151, Order 9 Rule 13 -- Execution of ex parte money decree -- Attachment of salary -- Decree for recovery of Rs.4,00,000/- -- Judgment debtor disclosed absence of any assets except one motorcycle -- Executing Court rightly exercised power under Order 21 Rule 41 CPC and attached 1/3rd of salary of judgment debtor employed in Railway Department for satisfaction of decretal amount -- Pendency of application under Order 9 Rule 13 CPC held immaterial in absence of any stay against execution proceedings.

(Paras 2 to 4)

MACT -- Assessment of income -- Pensionary benefits -- Widow continued to receive family pension after death of deceased -- Pension drawn by deceased at time of accident forms part of the income for determining compensation and cannot be excluded while assessing loss of dependency.

***

Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor accident claim -- Assessment of income -- Pensionary benefits -- Deceased was earning Rs.32,673/- per month from private employment and was also drawing monthly pension of Rs.5,839/- as retired Head Constable of Border Security Force -- Tribunal and High Court held that as widow continued to receive family pension after death of deceased, no loss on account of pension was proved -- Held, pensionary benefits cannot be excluded or deducted while determining loss of dependency -- Pension drawn by deceased at time of accident forms part of the income -- Total monthly income consequently re-fixed at Rs.38,512/- for determining compensation.

(Para 9, 10)

Bail application -- Scope of jurisdiction -- High Court while deciding bail application issued general directions regarding service of summons and execution of coercive measures, beyond scope of Section 483 BNSS -- Such directions liable to be set aside.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 483 -- Bail application -- Scope of jurisdiction -- While rejecting bail application, High Court issued directions regarding service of summons and execution of coercive measures -- Jurisdiction under Section 483 confined to grant, refusal or cancellation of bail and conditions incidental thereto -- Such directions beyond scope of bail jurisdiction held unsustainable and liable to be set aside -- However, steps already taken by State authorities permitted to continue independently in accordance with law.

(Paras 2, 5 to 8)

Recruitment -- Appointment of Principal -- Waitlisted candidate -- Recommended for appointment in one college but failed to join -- Fresh recommendation for another college on basis of subsequent vacancy held impermissible -- Appointment contrary to statutory scheme.

***

Recruitment -- Repeal and savings -- Enforcement of new selection statute -- After repeal of old Act, authorities could not revive old select list or issue fresh recommendation under repealed provisions.

***

Locus standi -- Officiating Principal -- Challenge to illegal appointment -- Officiating Principal competent to challenge appointment made contrary to statutory provisions -- Objection regarding locus standi held insignificant where action of authorities was ex facie illegal and without jurisdiction.

***

A. Uttar Pradesh Higher Education Services Commission Act, 1980 (16 of 1980), Sections 12, 13(3), 13(4) and 14 -- Appointment of Principal -- Waitlisted candidate -- Change of posting -- Appellant, a waitlisted candidate, was recommended for appointment as Principal in specific college but did not join on account of personal reasons -- Thereafter sought appointment in another college against subsequent vacancy -- Fresh recommendation in favour of appellant held contrary to statutory scheme and law laid down in Kamlesh Kumar Sharma case, (1998) 3 SCC 45 -- Appointment rightly quashed.

(Paras 18 to 23)

B. Uttar Pradesh Education Service Selection Commission Act, 2023 (15 of 2023), Sections 10, 11 and 31 -- Repeal and savings -- Validity of old select list -- Old Act stood repealed on enforcement of New Act -- Only recommendation already issued under Old Act could survive under saving clause -- Authorities could not revive old select list or issue fresh recommendation under repealed provisions.

(Paras 16 to 24)

C. Constitution of India, Article 226 -- Locus standi -- Officiating Principal -- Challenge to illegal appointment -- Officiating Principal competent to challenge recommendation and appointment made contrary to statutory provisions -- Where action of authorities is ex facie illegal and without jurisdiction, objection regarding locus standi loses significance.

(Paras 27, 28)

MACT -- Pensionary benefits -- Deduction from salary -- Impermissible -- Pension, PF and other retiral benefits cannot be deducted while computing income or loss of earning capacity of victim.

***

MACT -- 78% permanent disability -- Claimant discharged from CRPF service due to injuries -- Pension could not be deducted from salary while computing loss of earning capacity.

***

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident – Injury case -- Pensionary benefits -- Deduction from salary -- Impermissibility of -- Compensation in case of salaried employee is to be computed on basis of last drawn salary -- Pension and other retiral benefits being statutory/service benefits receivable independent of accidental injury or death cannot be treated as “pecuniary advantage” liable for deduction under Motor Vehicles Act -- Amount receivable towards PF, pension or insurance cannot be deducted while determining income or loss of earning capacity of victim.

(Para 19)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident -- Injury case -- 78% permanent disability -- Claimant, a 43-year-old Sub-Inspector in CRPF, discharged from service due to injuries suffered in accident -- Pensionary amount of Rs.15,247/- could not be deducted from salary of Rs.36,231/- while computing loss of earning capacity -- Claimant held entitled to addition of 30% towards future prospects -- Applying multiplier of 14 and disability at 78%, loss of earning capacity assessed at Rs.61,72,028/- -- Further amounts awarded towards pain and suffering, medical expenses, attendant charges, loss of amenities and future medical expenses -- Compensation enhanced to Rs.67,36,084/- -- Enhanced compensation payable with simple interest @ 7% p.a. from date of claim petition till realization.

(Para 21-30)

Senior citizen -- Reversion of property -- Absence of maintenance clause in transfer deed and failure to prove neglect or refusal to maintain -- No ground to declare transfer void.

***

Senior citizen -- Transfer of property -- Family settlement -- Property transferred pursuant to family arrangement and not in consideration of maintenance -- Attempt to seek reversion of property from one child only held unjustified.

***

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 23 -- Constitution of India, Articles 226/227 -- Reversion of property -- Challenge to order passed by learned Single Judge setting aside order of Tribunal directing son to revert property to senior citizen mother -- Held, twin conditions under Section 23 are required to be fulfilled before transfer can be declared void, namely, existence of condition in transfer deed obligating transferee to maintain senior citizen and proof of failure or refusal to provide such maintenance -- Transfer deed contained no such condition requiring son to maintain appellant-senior citizen -- No evidence was brought before the Tribunal to show that the appellant-senior citizen was not being maintained or the senior citizen did not have means to maintain herself -- Mere fact that son was residing in Austria held insufficient to invoke Section 23, particularly when he was residing abroad even at time of transfer and senior citizen had also stayed with him in Austria while receiving pension from Austrian Government -- Reversion rightly declined.

(Para 8 to 18)

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 23 -- Family settlement -- Reversion of property -- Property distributed amongst children through family settlement -- One child had already reconveyed property to senior citizen which was thereafter sold by her -- Held, transfer was not made in lieu of maintenance so as to attract provisions of Section 23 of 2007 Act -- Attempt to recover property from one child alone indicative of effort to redistribute property amongst other children -- Reversion rightly declined.

(Para 15, 16)

Lambardar -- Appointment -- Sarbrah Lambardar -- Mere experience as Sarbrah Lambardar does not confer preferential right to appointment -- Choice of Collector upheld -- Writ dismissed.

***

Lambardar -- Appointment -- Sarbrah Lambardar -- Preference to a Sarbrah Lambardar can be granted only where comparative merits of candidates are nearly equal -- Candidate younger in age, possessing larger landholding and recommended by lower revenue authorities rightly preferred for appointment.

***

A. Punjab Land Revenue Act, 1887 (17 of 1887), Section 13, 16 -- Constitution of India, Articles 226/227 -- Appointment of Lambardar -- Challenge to orders of Collector, Commissioner and Financial Commissioner appointing respondent as Lambardar -- Petitioner contended that being a former Sarbrah Lambardar, he was entitled to preference in view of Government notification dated 25.12.2021 -- Held, preference on basis of service as Sarbrah Lambardar cannot override comparative merits of candidates and grant of such preference being akin to hereditary claim already held unconstitutional -- Appointed candidate found younger in age, possessing larger landholding and recommended by lower revenue authorities -- Collector after considering comparative merits appointed respondent as Lambardar -- Choice of Collector not liable to interference unless shown to be perverse or suffering from patent illegality -- No illegality or perversity found in concurrent orders passed by revenue authorities -- Writ petition dismissed.

(Para 6 to 10)

B. Punjab Land Revenue Act, 1887 (17 of 1887), Section 13, 16 -- Appointment of Lambardar -- Sarbrah Lambardar -- Mere experience as Sarbrah Lambardar not decisive -- Preference on such basis can be granted only when comparative merits of candidates are substantially similar -- Appointed candidate found younger in age than petitioner, possessed larger landholding and was recommended by lower revenue authorities -- Appointment upheld.

(Para 7)

Sarpanch -- Removal from office -- Unauthorized occupation of Panchayat land -- Demarcation conducted pursuant to Court order established encroachment by petitioner and his brother over Panchayat Deh land -- Writ dismissed.

***

Haryana Panchayati Raj Act, 1994 (11 of 1994), Sections 51(3), 175(n) -- Constitution of India, Articles 226/227 -- Removal of Sarpanch -- Unauthorized possession of Panchayat land -- Deputy Commissioner removed petitioner from office of Sarpanch on allegation of encroachment over land recorded as Panchayat Deh -- High Court directed demarcation under supervision of SDM in presence of petitioner and stakeholders -- Demarcation report established illegal occupation to extent of 1171 sq. yards by petitioner and his brother -- No merit -- Writ petition dismissed.

(Para 3, 4)

Panch -- Removal from office -- Unauthorized possession of Panchayat land -- Petitioner removed from post of Panch -- Eviction order attained finality as same was never challenged -- Authorities rightly held petitioner disqualified to continue as Panch.

***

Haryana Panchayati Raj Act, 1994 (11 of 1994), Sections 51(3), 175(n) -- Constitution of India, Articles 226/227 -- Removal of Panch -- Unauthorized occupation/ encroachment -- Eviction order passed by Assistant Collector against petitioner regarding Gram Panchayat land -- Once eviction order attained finality and remained unchallenged, competent authority justified in invoking provisions of Sections 51 and 175(n) for removing petitioner from post of Panch -- No ground for interference in writ jurisdiction.

(Paras 5 to 7)

Partition proceedings -- Clubbing of partition proceedings relating to different khewats -- Mere convenience of some co-sharers not sufficient to direct clubbing of khewats having different co-sharers -- Clubbing permissible only with consent of all co-sharers.

***

Punjab Land Revenue Act, 1887 (XVII of 1887), Section 111, 121 -- Partition proceedings -- Clubbing of khewats -- Different co-sharers in different khewats -- Partition proceedings cannot be clubbed unless all co-sharers consent to same -- Clubbing of three khewats, which are subject matter of three separate partition applications, having different co-sharers cannot be permitted unless all the co-sharers in respective khewats agree to the same -- Merely for convenience of the some of the co-sharers, the partition cannot be carried out by directing clubbing of khewats unless all the co-sharers consent to the same.

(Paras 4 to 12)

Lambardar -- Appointment -- Collector found respondent more suitable candidate and appointed him as Lambardar -- Concurrent findings recorded by Collector, Commissioner and Financial Commissioner upheld -- No illegality or perversity found -- Writ petition dismissed.

***

Punjab Land Revenue Act, 1887 (XVII of 1887), Sections 28, 29 -- Punjab Land Revenue Rules, Rules 14 to 16 -- Constitution of India, Article 226 -- Appointment of Lambardar -- Scope of judicial review -- Choice of Collector in matter of appointment of Lambardar should not be lightly interfered with merely because another view is possible -- Interference warranted only in cases of patent illegality or perversity -- Concurrent findings of Collector, Commissioner and Financial Commissioner affirming appointment of respondent as Lambardar -- No illegality or perversity therein -- No ground made out for interference in writ jurisdiction.

(Paras 8 to 10)

Watercourse -- Change of alignment -- Challenge to orders passed by Canal Authorities directing restoration of sanctioned watercourse on common watt (boundary) between lands of parties -- Dismissal of civil suit on account of failure to prove demarcation report does not negate existence of sanctioned watercourse.

***

Punjab Canal and Drainage Act, 2023 (11 of 2023), Section 14(3) -- Constitution of India, Article 226 -- Change in alignment of watercourse -- Scope of judicial review -- Canal Authorities competent to restore alignment of sanctioned watercourse running on common watt between adjoining landowners -- Dismissal of civil suit on account of failure to prove demarcation report does not negate existence of sanctioned watercourse -- Canal Authorities rightly directed demarcation through Local Commission before implementation of alignment -- Direction held fair and in interest of all shareholders to ensure operationalization of watercourse at originally sanctioned site -- Impugned orders upheld.

(Paras 6 to 9)

Writ jurisdiction -- Challenge to notice issued by District Development and Panchayat Officer under provisions of Punjab Panchayati Raj Act, 1994 -- Petitioner relegated to avail statutory remedy by submitting response before competent authority -- Writ petition dismissed.

***

Punjab Panchayati Raj Act, 1994 (9 of 1994), Sections 20, 200 and 208 -- Constitution of India, Article 226 -- Show-cause notice issued by District Development and Panchayat Officer -- Judicial review at preliminary stage -- Scope -- High Court should not entertain writ petitions against notices issued by statutory authorities as a matter of routine -- Party must ordinarily submit reply before competent authority and pursue statutory remedies against adverse order, if any -- Writ petition dismissed, however, leaving it open to the petitioner to avail her other remedies, in accordance with law.

(Para 4-5)

Recruitment -- Eligibility criteria -- Relevant date for acquiring essential qualification -- Candidate must possess prescribed qualification on last date of submission of application -- Acquisition of qualification prior to examination or interview held immaterial.

***

Rajasthan Prosecution Subordinate Service Rules, 1978, Rule 12 -- Recruitment process -- Assistant Prosecution Officer -- Advertisement required candidate to possess Degree in Law -- Respondents had not acquired LL.B. degree on last date of submission of application and were still appearing in final year examination -- Deletion of proviso to Rule 12 permitting final year candidates to apply manifested legislative intent that only candidates possessing requisite qualification on relevant date are eligible -- Press note clarifying eligibility with reference to last date of application held consistent with Rules and advertisement -- High Court erred in permitting ineligible candidates to participate in selection process on ground that qualification was acquired prior to examination -- Eligibility conditions cannot be altered by liberal interpretation to enlarge pool of candidates -- Maxim “aliquid prohibetur ex directo, prohibetur et per obliquum”, what cannot be done directly cannot be permitted to be done indirectly, squarely applies to the case -- Impugned judgments set aside and appeals allowed.

(Para 18 to 26)

Recruitment -- Regular appointment -- Advertisement issued for regular post -- Candidate found suitable and selected through regular selection process -- Appointment of candidate on contractual basis alone, without assigning any reason, held arbitrary and discriminatory.

***

Constitution of India, Articles 14 & 16 -- Appointment -- Regular vacancy -- Advertisement issued for regular appointment of Assistant Professor -- Appellant possessed requisite qualifications and was selected through same selection process as other candidates who were granted regular appointments -- Selection Committee recommended appellant alone for contractual appointment without assigning any reason -- No material on record justifying differential treatment -- Acceptance of the contractual appointment does not estop a challenge to the illegality or irregularity of the selection process -- Denial of regular appointment held patently illegal and discriminatory -- Orders of High Court set aside -- Respondent-Institute directed to appoint appellant on regular basis with continuity of service but without financial benefits.

(Para 12 to 15)

Arbitration agreement -- Incorporation by reference -- Development Agreement containing arbitration clause -- Later Permanent Alternate Accommodation Agreements incorporating all terms and conditions of earlier Development Agreement -- Arbitration clause held binding upon parties to later agreements.

***

Arbitration and Conciliation Act, 1996 (26 of 1996), Sections 7(5), 11 & 21 -- Arbitration agreement -- Incorporation by reference -- Development Agreement containing arbitration clause -- Subsequent Permanent Alternate Accommodation Agreements specifically provided that all terms and conditions of Development Agreement shall form part of later agreements and all clauses thereof shall be binding on parties -- Not a mere reference to earlier agreement but complete incorporation thereof -- High Court erred in holding that there was no arbitration agreement between parties -- Impugned order set aside -- Sole Arbitrator appointed.

(Para 8 to 13)

NCLAT – Appeal without certified copy of impugned order -- Filing of appeal, without even applying for a certified copy of the order, practically meant that there was no filing of an appeal in the eyes of law.

***

Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 61(2) -- National Company Law Appellate Tribunal Rules, 2016, Rules 14, 15, 22 & 26(2) -- Appeal -- Certified copy of impugned order not filed -- Filing of certified copy under Rule 22(2) is mandatory requirement -- Filing of appeal, without even applying for a certified copy of the order, practically meant that there was no filing of an appeal in the eyes of law -- Appeal refiled after 150 days still suffered from material defects including non-filing of certified copy -- NCLAT erred in condoning delay without examining maintainability and validity of institution of appeal -- Order condoning delay set aside and appeal held liable to be rejected at threshold.

(Para 6 to 11)

***

Lok Adalat award -- Breach of terms of compromise -- Where compromise arrived at before Lok Adalat was allegedly breached, aggrieved party could either seek execution of award or seek revival/fresh adjudication of earlier proceedings -- Simultaneous continuation of execution proceedings and fresh proceedings under Section 12 of DV Act and Section 125 Cr.P.C. held impermissible.

***

Legal Services Authorities Act, 1987 (39 of 1987), Section 21 -- Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance -- Lok Adalat award -- Execution proceedings -- Maintainability -- Parties entered into compromise before Lok Adalat whereby husband agreed to pay maintenance of Rs.40,000/- per month to wife and minor daughter -- Subsequently, wife initiated fresh proceedings under Section 12 of DV Act and Section 125 Cr.P.C. and obtained interim maintenance/monetary relief -- Wife thereafter also sought execution of Lok Adalat award for recovery of maintenance amount -- Held, respondents could not simultaneously pursue execution of earlier compromise award and fresh maintenance proceedings founded on same cause -- Execution proceedings quashed -- Petitioner, however, directed to continue compliance of maintenance orders passed in subsequent proceedings.

(Paras 11 to 14)

***

Consolidation / clubbing of suits -- Scope -- Clubbing and consolidation of cases permissible where common issues are involved and parameters for such exercise are satisfied -- Purpose is to avoid multiplicity of evidence and conflicting adjudications.

***

Code of Civil Procedure, 1908 (5 of 1908), Section 151 – Consolidation/ clubbing of suits -- Trial Court dismissing application for consolidation on ground that there is no provision for clubbing of cases and Section 10 CPC does not permit such course -- Trial Court has completely misdirected itself by returning the findings that there is no concept of consolidation or clubbing the cases -- Section 10 CPC relates to principle of res-subjudice and has no application to issue of consolidation or clubbing of suits -- Consolidation/clubbing of suits permissible to avoid multiplicity of recording of evidence and isolated adjudication having bearing on connected lis -- Impugned order set aside -- Application for consolidation restored for fresh decision on merits.

(Paras 5 to 8)

***

Departmental proceedings -- Continuance of disciplinary proceedings after retirement -- Where disciplinary proceedings were initiated before employee attained age of superannuation and Service Regulations permit continuation of proceedings, same can continue and be brought to logical conclusion even after retirement.

***

Departmental proceedings -- Punishment after retirement -- Reduction in pay scale -- Validity -- Punishment of reduction by three stages in time scale of pay on permanent basis imposed after retirement held legally implementable.

***

Punjab and Sind Bank Officers’ Service Regulations, 1982, Regulation 20(3)(iii) -- Punjab and Sind Bank Employees’ Pension Regulations, 1995, Regulation 46, 48 -- Departmental proceedings -- Superannuation -- Reduction in pay scale after retirement -- Validity -- Charge-sheet served on date of superannuation of appellant -- Departmental proceedings continued and punishment of reduction by three stages in time scale of pay on permanent basis imposed -- Contention that only action under Pension Regulations could be taken after retirement – Held, Service Regulations specifically permitted continuation of disciplinary proceedings after superannuation as if officer continued in service -- Punishment imposed capable of implementation as pension could be recomputed on basis of reduced pay scale -- No perversity in enquiry report or disciplinary action -- High Court rightly upheld punishment -- Appeal dismissed.

(Paras 14 to 22, 36 to 39)

Minor offence under section 222 Cr.P.C. – Punishment for minor offence compare to charged offence -- Section 364 IPC cannot be treated as minor/cognate offence of Section 302 IPC -- Accused charged under Section 302 IPC cannot be convicted under Section 364 IPC in absence of specific charge.

***

Minor offence under section 222 Cr.P.C. – Minor offence not determined merely by lesser punishment -- Where two offences are cognate offences and main ingredients are common, offence carrying lesser sentence can be treated as minor offence vis-a-vis other offence.

***

Minor offence under section 222 Cr.P.C. – Composition of the offence under Section 304-B is vastly different from the offence of murder indicated under Section 302 IPC and hence the former cannot be regarded as a minor offence vis-a-vis the latter.

***

A. Indian Penal Code, 1860 (45 of 1860), Sections 302, 364 -- Code of Criminal Procedure, 1973 (2 of 1974), Sections 221, 222 -- Conviction for offence not charged -- Minor offence -- Scope – Murder / Kidnapping or abduction in order to murder -- Accused charged for offence punishable under Section 302 IPC -- Trial Court acquitting accused of offence under Section 302 IPC but convicting under Section 364 IPC on finding that accused had taken deceased with him on pretext of watching movie -- Validity -- Offence under Section 364 IPC is separate and distinct offence and cannot be construed as minor/ cognate offence vis-a-vis Section 302 IPC -- Ingredients of both offences not common -- In absence of specific charge under Section 364 IPC, conviction thereunder caused prejudice to accused and violated fair trial norms -- No evidence of forceful taking away or abduction of deceased by accused -- High Court justified in setting aside conviction -- Appeal dismissed.

(Paras 8 to 11)

B. Code of Criminal Procedure, 1973 (2 of 1974), Sections 222 -- Minor offence -- Interpretation -- Expression “minor offence” found in Section 222 is not defined under the Code, it can be discerned from the context which is not merely that the prescribed punishment is less than the major offence -- If the two offences are cognate offences and the main ingredients are common, the offence punishable with lesser sentence can be considered as a minor offence with reference to the other offence.

(Para 9)

C. Indian Penal Code, 1860 (45 of 1860), Sections 302, 304B -- Code of Criminal Procedure, 1973 (2 of 1974), Sections 221, 222 -- Murder – Dowry death -- Composition of the offence under Section 304-B is vastly different from the offence of murder indicated under Section 302 IPC and hence the former cannot be regarded as a minor offence vis-a-vis the latter.

(Para 10)

***

Confiscation proceedings -- Disproportionate assets -- Death of delinquent public servant during pendency of appeal does not automatically terminate confiscation proceedings, particularly when wife/other person holding property had been independently noticed and heard -- Abatement is distinct from acquittal -- High Court required to decide appeal on merits.

***

Prevention of Corruption Act, 1988 (49 of 1988), Section 13 -- Bihar Special Courts Act, 2009 (Bihar Act 6 of 2010), Sections 13, 14, 15, 19 -- Disproportionate assets -- Confiscation of property -- Death of public servant during pendency of appeal -- Effect -- Confiscation proceedings cannot be set aside merely on account of death of delinquent officer/public servant -- Wife/other person through whom money or property is held, having been put to notice and heard, proceedings can continue against such person -- Abatement is distinct from acquittal and is not a comment on merits of matter -- High Court ought to have decided appeal on merits instead of setting aside proceedings on ground of death of accused public servant -- Impugned judgments set aside -- Appeals restored to file of High Court for decision on merits.

(Paras 8 to 13)

***

Pre-emption – Co-sharer – Right of kinsfolk co-sharer -- Plaintiff being co-sharer in joint khewat was entitled to exercise right of pre-emption even though he was related to vendor -- Declaration of Section 15(2) of Punjab Pre-emption Act as unconstitutional did not take away right of co-sharer under Section 15(1)(b).

***

Punjab Pre-emption Act, 1913 (1 of 1913), Section 15(1)(b) Fourthly, 15(2) – Pre-emption suit -- Plaintiff sought possession by way of pre-emption on ground of being co-sharer in joint khewat -- Defendant contended that since plaintiff was related to vendor, claim could arise only under Section 15(2), which had been declared ultra vires -- Held, right of pre-emption available to co-sharer under Section 15(1)(b) remains intact notwithstanding declaration of Section 15(2) as unconstitutional -- Kinsfolk of vendor, if also co-sharers, are entitled to maintain suit for pre-emption under Section 15(1)(b) Fourthly -- Judgments and decrees passed by Courts below decreeing suit upheld -- Regular Second Appeal dismissed.

(Paras 7 to 10)

***

Family settlement – Oral family arrangement – Validity -- Property found to have fallen to share of defendant No.1 in family settlement -- Defendant No.1 constructed houses from his own funds and remained in settled possession -- Concurrent findings of fact not liable to be interfered with in second appeal.

***

Code of Civil Procedure, 1908 (5 of 1908), Section 100 – Regular Second Appeal -- Family settlement -- Partition suit -- Plaintiff sought possession by way of partition claiming suit property to be ancestral and joint Hindu family property -- Defendant No.1 pleaded that property had fallen to his share in oral family settlement -- Conceded position of fact that the parties partitioned their agricultural property long back -- They are neither joint in mess nor in residence -- Plaintiff is residing in Mumbai -- Defendant No.1 alone was residing in village and is in settled possession of houses constructed from his own funds -- Held, oral family settlement is valid and binding -- Concurrent findings of fact recorded by Courts below did not suffer from any legal infirmity warranting.

(Paras 10 to 12)

***

Adverse possession – Mere long and continuous possession does not ripen into ownership unless possession is proved to be hostile, open and in denial of title of true owner.

***

Adverse possession – Pleadings -- Absence of specific pleadings regarding hostile possession fatal to plea of adverse possession.

***

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Nature -- Pleadings -- Mere possession, irrespective of its duration, does not ipso facto mature into ownership unless such possession is proved to be open, continuous, hostile, and unequivocally adverse to the true owner -- Doctrine of adverse possession necessarily postulates a clear denial of the title of the lawful owner coupled with an assertion of hostile animus – Absent a clear and hostile animus to possess, the mere occupation of the land does not ripen into legal ownership -- It is a fundamental tenet of civil jurisprudence that a claim for adverse possession must be supported by precise averments regarding the date of commencement and the nature of the hostile occupation.

(Para 15-17)

***

Interim injunction -- Observations made while deciding application under Order 39 Rules 1 and 2 CPC are only tentative in nature – Trial Court to decide the suit de hors the observations made.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 39 Rules 1 and 2 –Interim injunction – Observations therein -- Effect of -- Observations made in order passed on an application under Order 39 Rules 1 and 2 CPC are only for the purpose of deciding the said application and same are not to be taken into consideration at the stage of final adjudication -- Trial Court directed to decide the main suit on the basis of the evidence and arguments, de hors the observations made in the impugned orders.

(Para 3-5)

***

Execution -- Enhanced compensation – Proforma respondents -- Petitioners impleaded as proforma respondents in Regular First Appeal seeking enhancement of compensation -- Benefit of enhanced compensation granted to petitioners.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 4 -- Land Acquisition Act, 1894 (1 of 1894), Section 18 -- Enhanced compensation -- Proforma respondents in appeal -- Joint reference petition filed by landowners was decided by common judgment -- Appeal against enhancement filed by some co-owners while petitioners were impleaded as proforma respondents -- Executing Court dismissed execution petition qua petitioners on ground that they were not appellants in appeal -- Held, once petitioners were parties as proforma respondents in appeal, benefit of enhanced compensation granted therein equally accrued to them in terms of Order 41 Rule 4 CPC -- Impugned order set aside and Executing Court directed to entertain execution petition and release enhanced compensation in accordance with law.

(Paras 7 and 8)

***

Compromise after conviction – Acquittal -- Parties amicably settled dispute during pendency of revision petition -- High Court set aside conviction and sentence and acquitted petitioners.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 528 -- Indian Penal Code, 1860 (45 of 1860), Sections 148, 323, 325, 506, 149 -- Compromise after conviction -- Parties amicably settled dispute during pendency of revision petition -- Complainant and State had no objection to compounding of offences -- High Court exercising powers under Section 528 BNSS set aside conviction and sentence and acquitted petitioners, holding that offences were private in nature and continuation of proceedings would defeat ends of justice.

(Paras 7 to 10)

***

Benami transaction -- Burden to prove benami transaction lies heavily upon person asserting same and mere payment of consideration by another does not establish benami nature of transaction unless intention to retain beneficial ownership is proved.

***

Adverse possession -- Permissive possession -- Mere long possession does not mature into ownership -- In absence of clear pleadings and cogent proof regarding hostile animus, plea of adverse possession is untenable.

***

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Limitation Act, 1963 (36 of 1963), Article 65, Section 27 -- Benami transaction -- Adverse possession -- Burden of proof -- Plaintiff sought possession after termination of licence granted to defendant-brother -- Defendant claimed that property though purchased in plaintiff’s name was actually purchased by father and sale deed was benami -- Mere proof that consideration proceeded from father not sufficient to establish benami transaction -- Intention of person supplying consideration held determinative test -- Evidence on record established that father intended to purchase property in plaintiff’s name and confer title upon him -- Plea of adverse possession untenable as possession was permissive in inception and no evidence led regarding point of time when possession became hostile to knowledge of true owner -- Repairs, reconstruction and long possession do not by themselves constitute adverse possession -- Concurrent findings of Courts below upheld -- RSA dismissed.

(Paras 12.1 to 14)

B. Limitation Act, 1963 (36 of 1963), Article 65, Section 27 -- Adverse possession -- It is trite that where possession is permissive in its inception, the person in possession must not only assert but also clearly establish the point of time at which such possession became hostile to the knowledge of the true owner -- In the absence of any such specific pleading or proof, the claim of adverse possession is rendered wholly untenable.

(Para 13.3)

***

Nominee –Savings account’s Nominee is entitled only to receive amount lying in account and does not acquire ownership of entire estate by virtue of nomination alone.

***

Indian Succession Act, 1925 (39 of 1925), Section 370 -- Nominee -- Succession certificate -- Plaintiff proved to be nominee in post office savings account -- Nomination held to confer right only to withdraw amount lying in account and not succession rights over entire estate -- Succession certificate obtained by defendant without impleading plaintiff and without disclosure of complete facts not conclusive of title -- It merely authorizes collection of debts and securities and does not adjudicate ownership of the estate conclusively.

 (Paras 12, 13)

***

Regular bail – Commercial quantity -- NDPS -- Prolonged custody, absence of criminal antecedents and no progress in trial constitute valid grounds for grant of regular bail despite rigours of S.37 NDPS Act.

***

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 21(c), 27-A, 37, 42, 50 -- Regular bail -- Commercial quantity -- Recovery of 465 grams heroin effected on basis of secret information from public place -- Petitioner in custody for one year six days -- No criminal antecedents -- Out of 12 prosecution witnesses, none examined till date -- Alleged violations of mandatory provisions of Ss.42 and 50 NDPS Act raised -- Trial likely to take considerable time -- Right to speedy trial cannot be defeated by prolonged incarceration -- Rigours of S.37 NDPS Act held not absolute where trial is delayed -- Petitioner ordered to be released on regular bail.

(Paras 5 to 8)

***

Execution -- Judgment Debtor cannot frustrate execution of decree by purchasing part of property during pendency of execution proceedings and thereafter raising plea of co-sharership -- Transfer pendente lite does not defeat decree for possession nor confer right to obstruct execution.

***

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 102 – Constitution of India, Article 227 -- Execution -- Objections by Judgment Debtor -- Lis pendens -- Decree for possession attained finality -- Judgment Debtor during pendency of execution proceedings purchased part of alleged joint land and claimed status of co-sharer to resist execution -- Purchase made subsequent to decree and during execution proceedings held hit by doctrine of lis pendens -- Executing Court cannot go beyond decree -- Subsequent transaction cannot render decree inexecutable -- Even transferee pendente lite not entitled to resist execution in view of O.21 R.102 CPC -- Objections rightly dismissed -- No interference warranted under Art.227 of Constitution.

(Paras 8 to 13)

***

Recall/re-examination of witness -- Power under O.18 R.17 CPC is exercisable sparingly by Court itself for clarification of ambiguity or eliciting further information and cannot be invoked by party to neutralize effect of cross-examination or fill lacuna in evidence.

***

Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17, Section 151 -- Recall/re-examination of witness -- Maintainability of application -- Power under O.18 R.17 CPC intended only to enable Court to clarify doubts and not to permit party to improve case or fill lacunae -- A witness can be recalled for re-examination only by the Court in order to clarify any ambiguity or elicit further information -- Under the said provision, a witness cannot be recalled for further re-examination on an application made by either party -- Said provision is not available to a private party; but is only available to the Court to remove ambiguity and to elicit further information.

(Paras 14 to 18)

***

Ad valorem Court fee -- Plaintiff being signatory/executant of sale deed and seeking possession after its revocation along with recovery of specified amount, held, liable to pay ad valorem Court fee notwithstanding suit being styled as one for mandatory injunction.

***

Court Fees Act, 1870, S.7(iv)(c), Art.17(iii) Sch.II -- Ad valorem Court fee -- Suit for possession camouflaged as mandatory injunction -- Plaintiff sought revocation/cancellation of sale deed executed by himself and also sought release of specified balance sale consideration -- Mere clever drafting of suit as one for mandatory injunction cannot avoid payment of proper Court fee – Signatory of sale deed seeking its annulment liable to pay ad valorem Court fee on consideration mentioned in deed -- Trial Court rightly directed plaintiff to affix ad valorem Court fee -- Revision dismissed.

(Paras 10 to 15)

***

Anticipatory bail -- Abetment of suicide -- Refusal to perform marriage and alleged abusive behaviour, without any positive act of instigation proximate to occurrence, would not prima facie constitute offence of abetment of suicide -- Anticipatory bail granted.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 482 -- Bharatiya Nyaya Sanhita, 2023 (45 of 2023), Section 108 -- Anticipatory bail – Abetment of suicide -- Allegation that deceased committed suicide after fiancée refused to marry him and petitioners allegedly abused and threatened him -- Deceased consumed poisonous substance and died after 10 days -- No suicide note or dying declaration on record -- Abusing or refusal to perform marriage is not sufficient to constitute offence of abetment of suicide -- Petitioners granted anticipatory bail.

(Para 7-8)

***

Regular bail -- NDPS -- Petitioner neither named in secret information nor apprehended at spot -- No recovery effected from petitioner -- Implication primarily based upon disclosure statement -- Trial likely to take considerable time -- Regular bail granted.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 483 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 15-B, 15-C, 29, 61 -- Regular bail – NDPS -- Recovery of 28.750 Kgs. Doda Poppy Husk effected from co-accused travelling in car -- Petitioner neither nominated in secret information nor apprehended at spot -- No recovery effected from petitioner at time of arrest -- Allegations against petitioner based mainly on disclosure statement of co-accused regarding supply of contraband -- No other substantive evidence shown at stage of bail – Custody of 02 months and 26 days and trial of the case is likely to consume considerable time -- Further incarceration held not justified -- Petitioner ordered to be released on regular bail.

(Para 6-8)

***

Arrest of accused -- Direction -- Petitioner sought directions for arrest of accused persons and fair investigation -- Petition disposed of with direction to Senior Superintendent of Police to consider and decide representation within stipulated period in accordance with law.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 528 -- Bharatiya Nyaya Sanhita, 2023 (45 of 2023), Sections 91, 191(3), 190, 351(2) -- Indian Penal Code, 1860 (45 of 1860), Sections 315, 148, 149, 506 -- Direction for arrest and fair investigation -- Petition disposed of with direction to SSP to consider and decide representation within four weeks in accordance with law.

(Para 2 & 6)

***

Regular bail -- Parity -- Murder case -- No specific role of firing attributed to petitioner, alleged only to have accompanied accused persons and remained present at spot -- Co-accused having similar role already granted bail -- Custody of 02 years, 05 months and 23 days -- Not even single prosecution witness examined -- Regular bail granted.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 483 -- Bharatiya Nyaya Sanhita, 2023 (45 of 2023), Sections 103(1), 3(5), 61(2) -- Indian Penal Code, 1860 (45 of 1860), Sections 302, 34, 120-B -- Arms Act, 1959 (54 of 1959), Sections 25, 27 -- Regular bail -- Murder case -- Petitioner not attributed specific role of firing upon deceased -- Alleged involvement primarily based upon disclosure statement and presence at spot -- Co-accused attributed similar role of conducting recce already enlarged on bail -- Investigation completed and challan presented -- Charges framed but no prosecution witness examined till date -- Petitioner undergone custody of 02 years, 05 months and 23 days -- Further incarceration would serve no useful purpose -- Petitioner ordered to be released on regular bail.
 

(Para 6-10)

***

Regular bail -- Parity -- NDPS -- Co-accused already granted regular bail -- Case of petitioner at par with co-accused -- Petitioner in custody since 25.11.2024 -- Trial likely to take time -- Regular bail granted.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 483 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 22-C, 37 -- Regular bail – NDPS -- Recovery of 120 grams Buprenorphine falling within commercial quantity -- Co-accused having similar role already granted regular bail -- Incarceration of 01 year, 05 months & 11 days -- Petitioner is involved in 02 other cases, however in 01 case, he is on bail -- Veracity of allegations to be tested during trial -- Petitioner ordered to be released on regular bail on basis of parity with co-accused.
 

(Para 6-10)

***

Superdari – NDPS -- Seized vehicle should not be allowed to remain parked in police station for long duration after completion of investigation, as continued retention causes deterioration and serves no useful purpose –Interim custody granted by imposing adequate safeguards to protect prosecution interest.

***

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 18, 29 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 451 -- Release of vehicle on sapurdari – NDPS -- Commercial quantity of opium recovered from vehicle -- Merely because the vehicle may ultimately become subject matter of confiscation proceedings under the NDPS Act cannot be a ground to deny interim custody thereof for an indefinite period -- Registered owner through special power of attorney holder expressed willingness to furnish security and produce vehicle as and when required -- Impugned order refusing release set aside -- Vehicle ordered to be released on sapurdari subject to conditions restraining alienation and ensuring production before Court.

(Para 5-7)

***
Regular bail -- NDPS – Commercial quantity – Criminal antecedents -- Accused is not named in FIR, no recovery is effected from him and his role is confined to alleged preparation of forged vehicle documents, rigours of Section 37 NDPS Act not attracted -- Criminal antecedents alone cannot be a ground to deny bail.

***

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 483 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 15(c), 25 and 29 -- Bharatiya Nyaya Sanhita, 2023 (45 of 2023), Sections 318(4), 336(3), 338, 340(2), 238(3), 61(2) – Regular bail – NDPS – Commercial quantity -- Recovery of 274.73 kgs poppy husk from vehicle bearing fake registration number -- Petitioner alleged to have facilitated offence by preparing forged registration certificate of vehicle used for transportation of contraband -- No contraband recovered from petitioner not named in FIR and nominated subsequently on basis of disclosure statement of co-accused -- Rigours of Section 37 NDPS Act held not attracted qua petitioner -- Similarly situated co-accused already granted regular bail -- Mere involvement in other criminal cases held not sufficient to deny concession of bail -- Investigation complete and trial likely to take considerable time -- Bail is rule and is jail exception -- Petitioner ordered to be released on regular bail.

(Paras 4 to 8)