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Posted On: 23-08-2024
367. (MP HC) (Reserved on: 16.08.2023 Decided on: 21.09.2023)

Indian Penal Code, 1860 (45 of 1860), Section 375 Exception 2, 294, 376(2)(n), 377, 498A, 506 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Rape/ Unnatural offence – Husband and wife – Second marriage without divorce -- Quashing of FIR -- As per the amended definition of section 375 (2013), if offender and victim are husband and wife then consent is immaterial and no offence u/s 375 is made out and as such there is no punishment u/s 376 of IPC -- There is repugnancy in the situation when everything is repealed u/s 375 then how offence u/s 377 would be attracted if it is committed between husband and wife.

-- Marriage was solemnized between petitioner and complainant as per Adivasi customs and approval to second marriage for tribes and considered its legal sanctity, the marriage of the petitioner even though divorce from first wife did not take place, cannot be considered to be illegal act on the part of the petitioner as also respondent No.2 has admitted that she is the wife of the petitioner.

-- Petitioner is not punitive for the offence punishable u/s 376(2)(n) and Section 377 of IPC -- For constituting offence u/s 498-A IPC, there is no allegation of any demand of dowry -- For other offences i.e. Sections 294 and 506 of IPC, no date, place and time has been disclosed and as such the complaint is a malicious prosecution as there was inter se dispute between husband and wife.

Petition allowed, FIR quashed.

(Para 11-22)

Posted On: 21-08-2024
371. (UK HC) (Reserved on: 12.08.2024 Decided on: 20.08.2024)

A. Uttar Pradesh Agriculture Group-B Service Rules, 1995 -- Qualification in advertisement – Recruitment Rules – Applicability of -- Bachelor degree in Agricultural Engineering added as one of the qualification for appointment to the post in question after issuance of advertisement -- Petitioner cannot claim benefit of such changed qualification, and his eligibility has to be seen with reference to the Rules as were prevailing on the date of commencement of selection process.

(Para 6)

B. Uttar Pradesh Agriculture Group-B Service Rules, 1995 -- Qualification as per rules – Subsequent amendment – Effect of -- As per the recruitment Rules in vogue at the time of advertisement, a candidate with Bachelor degree in Agriculture or possessing any qualification recognised by the State Government as equivalent thereto, alone is eligible for appointment to the post in question -- Subsequent amendment in the Rules will not improve the case of petitioner.

(Para 7)

C. Uttar Pradesh Agriculture Group-B Service Rules, 1995 -- Qualification – Permitting candidate without qualification -- Estoppel  against Public Service Commission -- Eligibility of a candidate is scrutinised at the time of interview or thereafter at the time of appointment --  There cannot be estoppel against statute -- Recruitment Rules are statutory in nature and any person, who is not qualified as per the recruitment Rules, cannot claim estoppel against the selecting body i.e. Public Service Commission by contending that after permitting him to appear in the selection process, his candidature cannot be rejected on the ground that his qualification is not as per the requirement of the Rules.

(Para 9)

Posted On: 21-08-2024
374. (MP HC) (Decided on: 30.07.2024)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 439 --  Constitution of India, Article 21 -- Automatic cancellation of bail -- Whether High Court can impose a condition of automatic cancellation of bail order -- Cancelling of bail order directly affects freedom of a person which affects his fundamental rights -- Reasonable opportunity of hearing is a fundamental right under the Constitution of India – Held, if there is an automatic cancellation of bail order, then valuable right of natural justice is denied to accused -- Such condition could not be made part of the bail order.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 362 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 403 – Constitution of India, Article 21 -- Automatic cancellation of bail -- Review of order -- Court is barred from reviewing or altering its own order under Section 362 of Cr.P.C./ 403 of B.N.S.S., 2023 -- Both sections are pari materia -- While recalling a judgment Court has to apply its mind and has to look into the facts of the case, therefore, bar u/s 362 of Cr.P.c. or new Section 403 of B.N.S.S., 2023 will be operative, but there are certain exceptions when Court can recall/relook into the judgment and violation of fundamental rights is one of the said exceptions -- If condition of automatic cancellation of bail order is hit by Article 21 of the Constitution of India, then order will be revived and Court can consider the application for modification also.

(Para 7)

Posted On: 18-08-2024
379. (UK HC) (Reserved on: 16.05.2024 Decided on: 07.08.2024)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 1 -- Statement of Objects and Reasons – It was enacted to provide for institutionalization of a suitable mechanism for protection of life and property of older persons as well as to provide need-based maintenance to the parents and senior citizens -- The “Act” aims to give more attention to the care and protection of older persons while envisaging simple, inexpensive and speedy procedure for the protection of their life and property -- The Act further casts a duty upon the State to ensure that the life and property of senior citizens are protected and they are able to live their lives with security and dignity -- The Act is a special legislation and its provisions have to be construed liberally to further its primary objective to ensure social justice to the abused parents and senior citizens.

(Para 24-29)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 2(f) -- Right to property – Ownership of property – Interpretation of -- Petitioner is in possession over the property in question through her husband, who had accrued the right over the property by way of a Will executed by the petitioner’s mother-in-law in favour of her husband -- Respondent no.2 argues that the petitioner does not have the sole ownership over the property and the property is held jointly by respondent no. 2/ niece as well, thus, the petitioner not being the owner lacks any right to seek eviction – Held, term “property” as defined u/s 2 (f) of the Act, includes any ‘right or interest in such property’ and is not limited to ownership of the property.

(Para 31)

C. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 2(f), 4, 22 -- Uttarakhand Maintenance and Welfare of Parents and Senior Citizens Rules, 2011, Rule 19 – Power to order eviction -- Duty is cast upon the District Magistrate to ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity -- The term ‘security and dignity’ is to be construed in wider terms and cannot be subjected to any limitations that may have frustrate the objective of the “Act” -- The term ‘security’ can be understood in terms of security of his/her place of residence – Power to order ‘eviction’ is implicit in it and holding it contrary would frustrate the very purpose for which the Act was enacted.

(Para 35)

D. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 3, 22, 27 -- Eviction of niece – Maintainability of -- Civil suits between parties pending – Effect of --  Petitioner, is an old-aged lady in her late seventies, who is stated to have been suffering from serious ailments and is presently undergoing Dialysis; she is currently on ventilator -- Respondent no. 2/ niece interfering in the peaceful possession of the petitioner’s property thereby endangering her life -- Court deemed it just and proper that justice would be met if the petitioner is allowed to enjoy her property without any hindrance -- Maintenance Tribunal was well within its jurisdiction to pass an order of eviction against niece  -- Rights of the parties over the property is sub-judice before the civil court is concerned, it has no bearing to the facts of the case -- Application filed by the petitioner against the respondent no. 2/ niece was clearly maintainable -- Respondent no.2 is directed to vacate the property in question within a week.

(Para 36-45)

E. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 4, 22 -- Eviction without seeking maintenance – Maintainability of -- ‘Maintenance’ and ‘eviction’ are two separate remedies which fall under two different chapters of the Act and to hold that availing one of the remedy is a must to avail the other, would not be in the line with the Scheme of the Statute -- Thus, claiming ‘maintenance’ is not a prerequisite to seek ‘eviction’ under the Act -- Petitioner seeking ‘eviction’ of respondent no. 2 was clearly maintainable even in the absence of any claim for maintenance.

(Para 43)

Posted On: 17-08-2024
385. (P&H HC) (Reserved on : 16.07.2024 Decided on: 19.07.2024)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Eviction of tenant -- Bonafide need – Landlady wants to convert the entire ground floor into a big hall so as to open a showroom -- Tenant cannot dictate the landlord as to what should be his/ her necessity -- Neither the tenant can object in this regard nor the Court can direct the landlady to go as per the suggestions of the tenant.

(Para 5)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Eviction of tenant -- Bonafide need – Landlord residing abroad -- Merely because during the pendency of proceedings, the landlady is residing outside, cannot be a ground to reject the petition -- As soon as the property is vacated, she intends to do her business by converting the ground floor into a big hall and to open a showroom and the said contention of landlady cannot be disbelieved.

(Para 6)

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Eviction of tenant -- Bonafide need – Resjudicata -- Earlier petition filed for bona fide requirement by the husband of the petitioner was dismissed -- However, present petition has been filed by the landlady after the death of her husband and therefore, in case she wants the demised shop for starting her business by opening a showroom by converting the entire ground-floor into a hall, for her livelihood, a fresh cause of action has arisen in favour of the landlady.

(Para 7)

D. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Eviction of tenant -- Bonafide need – Presumption -- Landlord, who establishes his prima facie case regarding his necessity, the Court is entitled to raise a presumption in his favour to the effect that the necessity is bona fide -- Onus then shifts upon the tenant to show that the plea of landlord is not bona fide.

(Para 7)

Posted On: 15-08-2024
391. (Allahabad HC) (Reserved on: 18.01.2024 Decided on: 16.07.2024)

A. Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 4 – Provincial Small Cause Courts Act, 1887 (9 of 1887), Section 25 -- Transfer of Property Act, 1882 (4 of 1882), Section 106 -- Termination of lease – Suit for eviction, and recovery of rent and damages for use and occupation -- Ex-parte proceedings -- In ex-parte proceedings the Court is required to test the case of the plaintiff and not merely believe whatever has been stated in the plaint.

-- Impugned order records that the Defendants/Revisionists had filed written statement however, at the stage of evidence did not file any evidence in support of his written statement or in rebuttal of the plaint nor examined the plaintiff witnesses.

-- Defendants/ Revisionists also did not appear at the time of arguments and the case in such circumstances proceeded ex-parte against the Defendants/ Revisionists.

– Plaintiff/ Respondent filed the certified copy of the registered Lease Agreement executed between the parties.

-- Notice u/s 106 of the Transfer of Property Act, Postal receipts showing service of the Notice upon the Defendants/ Revisionists, photocopies of the cheques along with the Bank return memos showing insufficient funds in the Bank account of the Defendants/ Revisionists.

Evidence of the Plaintiff/ Respondent stood unrebutted -- Taking note of the above in the absence of any contest from the Defendants/ Revisionists learned Judge Small Causes Court proceeded to decree the suit of the Plaintiff/Respondent -- No illegality in the procedure adopted by the learned Judge Small Causes Court in decreeing the Suit of the Plaintiff/Respondent -- Findings recorded by the learned JSCC calls for no interference.

(Para 25-28, 39-41)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63(2)(3), 65, 74 -- Registration Act, 1908 (16 of 1908), Section 57 -- Certified copy of registered lease deed – Admissibility in evidence –  Certified copy of the Lease Agreement will fall under the category of secondary evidence – Certified copy of the Lease Agreement is a Public Document, as contemplated u/s 74 and in terms of the 3rd Proviso to Section 65(e) or 65(f) the certified copy is admissible in evidence -- Sub Section 5 of Section 57 of the Registration Act provides that certified copy given u/s 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document -- Rightly relied while decreeing the Suit.

(Para 29-34)

Posted On: 15-08-2024
393. (SC) (Decided on: 09.08.2024)

A. Railways Act, 1989 (24 of 1989), Section 124, 124A -- Railway Claims Tribunal Act, 1987 (54 of 1987), Section 16 -- Compensation in railway accident case – Death by fall from train – Presumption -- Burden of proof -- Appellant had duly filed an affidavit stating the facts and adverting to the report arising from the investigation conducted by the respondent, which showed that the deceased was travelling on the train and that his death was caused by a fall during the course of his travel -- Burden of proof then shifted to the Railways, which has not discharged its burden -- Therefore, the presumption that the deceased was a bona fide passenger on the train in question was not rebutted.

(Para 14)

B. Railways Act, 1989 (24 of 1989), Section 124, 124A -- Railway Claims Tribunal Act, 1987 (54 of 1987), Section 16 -- Compensation in railway accident case – Death by fall from train – Post-mortem report – Reliance upon -- Conclusions in post-mortem reports as to the time of death are approximations -- Estimation as to the time of death in the post-mortem report differs from the time at which the IO stated that the deceased fell off the train by about half a day -- Report of the IO otherwise corroborated that the deceased fell from the train -- Post-mortem report also stated that the deceased sustained antemortem injuries due to blunt force impact -- Hence, deceased was a bona fide passenger on the train in question and that he sustained grave injuries leading to his death, due to his fall from the train -- Compensation is therefore due to the appellant.

(Para 15-17)

C. Railways Act, 1989 (24 of 1989), Section 124, 124A -- Railway Claims Tribunal Act, 1987 (54 of 1987), Section 16 -- Railway Accidents (Compensation) Rules 1990, Schedule I -- Compensation in railway accident case – Death by fall from train – Accident on 5 September 2003 – Revised compensation – Permissibility of --  In 2003, the compensation payable for the death of a passenger was Rs 4,00,000 --  The compensation payable for the death of a passenger as on date is Rs 8,00,000, which was enhanced by a notification bearing GSR 1165(E) dated 22 December 2016 -- Appellant is entitled to compensation quantified at Rs 8,00,000.

(Para 20, 21)

Posted On: 15-08-2024
395. (P&H HC) (Decided on: 06.08.2024)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 2(1)(e), 11(6), 20, 31, 42 – Appointment of Arbitrator – Jurisdiction – Cause of action -- Definition of ‘Court’ -- High Court does not fall within definition of Court as defined under Section 2 (1) (e) of 1996 Act -- High Court gets jurisdiction u/s 11(6) where principal Civil Court of original jurisdiction has jurisdiction to decide the questions forming the subject matter of arbitration, had the same been the subject matter of suit -- Cause of action has arisen within jurisdiction of principal Civil Court at Karnal (Haryana) --  Contention of respondent that as per arbitration agreement, Mumbai Court has exclusive jurisdiction – Held, Court at Karnal (Haryana) as well as Mumbai has jurisdiction in term of Section 2(1)(e) read with Section 20 of 1996 Act -- As Civil Court at Karnal (Haryana) has jurisdiction to entertain dispute in question, Punjab and Haryana High Court has jurisdiction to entertain application under Section 11 (6) of 1996 Act.

(Para 11-22)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6), 20, 31, 42 -- Appointment of Arbitrator – Place of Arbitration -- High Court at Chandigarh makes appointment of an Arbitrator -- Both the parties are having their offices at Delhi -- Arbitrator, after his appointment by High Court, may fix place of arbitration at New Delhi because said place may be convenient to both the parties -- In this situation, despite appointment of arbitrator by Punjab and Haryana High Court, the place of arbitration would be ‘New Delhi’.

(Para 13)

Posted On: 13-08-2024
400. (P&H HC) (Decided on: 23.07.2024)

A. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Registration of FIR – Requirement of -- There is no mandatory requirement of law that the FIR should be lodged before filing a petition under Section 166 of the Act -- Claimants approaching the Tribunal have to prove the case before the Tribunal in accordance with law and irrespective of whether the FIR has been lodged or not.

(Para 7)

B. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Employee of insured – Whether third party -- Argument that the deceased was employed with the insured and hence would not be covered under third party insurance, deserves to be rejected.

(Para 7)

C. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Non-mentioning of the name of the driver in the FIR -- Merely because the name of the driver was not mentioned in the FIR by itself would not entail dismissal of the claim petition -- FIR had the complete details of the vehicle involved and hence mere non-mentioning of the name of the driver cannot be in any way be held against the claimants.

(Para 7)

D. Motor Vehicles Act, 1988 (59 of 1988), Section 166 -- Compensation in motor vehicle accident case – Unmarried major sister claimant – It is not a case where the sister is stated to be staying separately -- Sister, though major, was admittedly staying with her brother and in the claim petition it has specifically been mentioned that the deceased was the sole breadwinner of the family -- No evidence to the contrary has been produced by the appellant/ Insurance company -- Argument that unmarried sister of deceased could not be treated as a dependent on the deceased deserves to be rejected.

(Para 7)