WEST BENGAL STATE UNIVERSITY

KINGSTON LAW COLLEGE

(A UNIT OF KINGSTON EDUCATIONAL INSTITUTE)

COURT VISIT REPORT

UNDER THE SUPERVISION OF: ASSISTANT PROF. SHAMSHER
ALI, HoD, KLC

SUBMITTED BY

NAME: SWARNADIP DAS

REGISTRATION NO.: 3032211406391
UNIVERSITY ROLL NO.: 30322011250011
COLLEGE ROLL NO.: 22/KLC-LL. B/115
COURSE: LL.B (3 YEARS)
SESSION: 2022 – 2025
SEMESTER: 6th Semester
 CERTIFICATE

This is to certify that, SWARNADIP DAS, being a student of 3 years LL. B of

6TH Semester, bearing the Roll no. 22/KLC-LL. B/115, REGISTRATION NO.
3032211406391, under WEST BENGAL STATE UNIVERSITY, have been
done this project work under the guidance of ASSISTANT PROF. SHAMSHER
ALI, HoD, to fulfillment of the award of the 3years LL. B degree (2022 – 2025)
during the period of final year.

Place: Kolkata

Date:

Shamsher Ali, HoD, KLC

[Kingston Law College]

 ACKNOWLEDGEMENT

Before detailing the report, it is essential to acknowledge the efforts of certain

good people who had given their support and guidance to make this report.

First of all, I must express my sincere gratitude to all lecturers especially who
supported and guided and accompanied us throughout this effort. I thank all the
teachers who helped me by providing the equipment that was necessary and vital,
without which I would not have been able to work effectively on this project. I
would also like to thank our Principal Dr. Suman Gupta Sharma, for providing
me with this wonderful opportunity to work on a project on the topic of Court
Visit Report. I would also like to express my sincere gratitude to my friends and
parents, who stood by me and encouraged me to work on this Project. The
completion of the project would not have been possible without their held and
insights.

I would like to acknowledge that this project was completed entirely by me and
not by someone else.
 Declaration

I, SWARNADIP DAS, Roll No. 22/KLC-LL. B/115 hereby Declare that the
Project Report Entitled in the partial fulfilment of the course curriculum of the
Degree LL. B (3 years) from KINGSTON LAW COLLEGE.

The work done by me is my own peace of work and authentic to the best of my
knowledge under the supervision of Prof. Shamsher Ali, HoD, KLC.

(Signature)

Name – Swarnadip Das

Registration No. 3032211406391 of 2022
Roll No. 22/KLC-LL. B/115
Course – LL. B (3 years)
Semester – 6th Semester
Session – 2022 – 2025
 ABBREVIATION
Acronym Full Form Acronym Full Form
ADM Additional District Magistrate FB Full Bench
ADR Alternative Dispute Report FIR First Information Report
AG Attorney General GPA General Power of Attorney
AG Attorney General HC High Court
AIR All India Reporter HCP Habeas Corpus Petition
AIR (SC) All India Reporter (Supreme HRA Human Rights Act
Court)
AOR Advocate on Record ICJ International Court of
Justice
APP Assistant Public Prosecutor IPC Indian Penal Code
ARBARD(A) Arbitration Appeal / petition MOU Memorandum of
/ (P) Understanding
AS First Appeal OP Original Petition
BC Banking Case PC Act Prevention of Corruption
Act
BCI Bar Council of India PIL Public Interest Litigation
CAS Central Administrative POCSO Protection of Children for
Tribunal Sexual Offences Act
CC Certified Copy PW Prosecution Witness
CC Criminal Case REV. AP Review Application
PL
CIC Central Information RT Referred Trial
Commission
CJI Chief Justice of India RTI Right to Information
CJM Chief Judicial Magistrate SA Second Appeal
CMA Civil Miscellaneous Appeal SAT Securities Appellate
Tribunal
CPC Civil Procedure Code SCC Supreme Court Cases
CrPC Code of Criminal Procedure SOPO Sexual Offences Prevention
Order
CS Court of Sessions TC Tax Case
DB Division Bench Tr. P Transfer Petition
DM District Magistrate UCC Uniform Commercial Code
DMC Divorce and Matrimonial UDHR Universal Declaration of
Cases Human Rights
DVC Domestic Violence Act WP Writ Petition
ECC / ECR Exercise and Custom Cases/ Writ A formal written order or
Report directive from Higher Court
 TABLE OF CONTENTS

Sl. No. Topic Names Page No.

1. Abstract 1
2. Purpose and objective of Court Visit 2
3. Few Definition Regarding High Court and Its Subordinate 3
Judicial System of India
4. Hierarchy of Indian Judicial System 3–5
5. Power and Jurisdiction of High Court 6–8
4. CRIMINAL CASE
4.A The State Of Madhya Pradesh Vs Laxmi Narayan 9 – 14
4.B Matang Sinh Vs. The Central Bureau of Investigation 15 – 20
5. CIVIL CASE
5.A Sujit Pal Vs. Prabir Kumar Som and Ors. 21 – 24
5.B Devaki Vs. Chandrika And Anr. 25 – 30
6. MATRIMONIAL SUIT
6.A Smt. Uttara Praveen Thool Vs. Praveen S/o Bhanudas Thool 31 – 38
6.B Rajat Gupta Vs. Rupali Gupta 39 – 46
7. WRIT PETITION
7.A Phani Bhusan Mondal Vs The State Of West Bengal & Ors. 47 – 51
7.B Md. Rahim Sk. Vs. The State of West Bengal & Ors. 52 – 55
8. Conclusion 56
9. Bibliography 57
 ABSTRACT

Courts are regarded as the temples of justice. Any person who is aggrieved by the acts of
another takes his resort in courts to get his grievances. As a law student who intends to pursue
his career as a lawyer and is preparing to develop his career plans, I will be much benefitted if
I gets an opportunity to observe closely the procedures carried out in the courts. Court visits
are included in legal education curriculum to provide the students with an opportunity to study
by observing a live court room.

The students of law at KINGSTON LAW COLLEGE, is having such an activity in our 6th
Semester.

After visiting the Court and observe the court procedures closely, and with the help of our
college professors I am going to make this report; here will discuss about 8 case laws and will
try to give my own observations. The 8 cases will cover 2 Criminal Cases, 2 Civil Matter, 2
Matrimonial Suit and 2 Writ Petition of High court.
 PURPOSE OF COURT VISIT

The purpose of the visit was to understand the working of a court, the nature of duties of the
judicial officers. The visit was to help the student in understanding the role of court in
dispensing justice in any case, the role of prosecutors in a case, the way cases proceed in a
court, the way judges, prosecutors and defence lawyers handle the case, the relationship of the
prosecutors and the police. This gave an opportunity to understand the actual need of co-
ordination in the justice system. The visit included an in-depth study of the day to day
functioning of the Civil and Criminal Courts, at different levels and over a vast variety of cases.
The aim was to evaluate the resources available and the distribution of power between the
judges, the prosecution, and the defence council.

OBJECTIVES FOR VISIT

1. In order to learn the practical process of the court;

2. To understand the working of the court and organisation in the court;
3. The nature and duties of judicial officers;
4. Introduction to Laws;
5. To help us understand the role of court in dispensing justice in any filing in the Case
Charge Sheet;
6. To observe how the lawyer is opening the case;
7. The role of the lawyer on the point of framing the charge;
8. The role of lawyer in the plea-bargaining;
9. The way, judge, prosecutors and defence lawyers handle the cases;
10. Other miscellaneous work done by the public-labour prosecutor.
Few Definition Regarding High Court and Its Subordinate Judicial System
of India.

Court – A Court is an institution that the government sets up to settle disputes through a legal
process. Courts decide what really happened and what should be done about it. They decide
whether a person committed a crime and what the punishment should be. They also provide a
peaceful way to decide private disputes that people can’t resolve themselves.

Prosecutor – The prosecutor is the chief legal representative of the prosecution in countries
with either the common law adversarial system, or the civil law inquisitorial system.

Prosecution – The prosecution is the legal party responsible for presenting the case in a
criminal trial against an individual accused of breaking the law.

Defence Lawyer – A defence lawyer is an attorney that represents an accused party in legal
matters, including in a court of law. The accused partly is known as the defendant, hence the
name, defence lawyer.

Hierarchy of Indian Judicial System

The Indian judiciary is divided into several levels in order to decentralize and address matters
at the grassroots levels. The basic structure is as follows:

1. Supreme Court: It is the Apex court of the country and was constituted on 28th January
1950. It is the highest court of appeal and enjoys both original suits and appeals of High Court
judgments. The Supreme Court is comprised of the Chief Justice of India and 25 other judges.
Articles 124-147 of the Constitution of India lay down the authority of the Supreme Court.

2. High Courts: High Courts are the highest judicial body at the State level. Article 214 lays
down the authority of High Courts. There are 25 High Courts in India. High Courts exercise
civil or criminal jurisdiction only if the subordinate courts in the State are not competent to try
the matters. High Courts may even take appeals from lower courts. High Court judges are
appointed by the President of India upon consultation with the Chief Justice of India, the Chief
Justice of the High Court and the Governor of the State.

3. District Courts: District Courts are established by the State Governments of India for every
district or group of districts based on the caseload and population density. District Courts are
under the direct administration of High Courts and are bound by High Court judgments. Every
district generally has two kinds of courts:

a. Civil Courts

b. Criminal Courts

District Courts are presided over by District Judges. Additional District Judges and Assistant
District Judges may be appointed based on the caseload. Appeals against District Court
judgments lie in the High Court.

4. Lok Adalats/Village Courts: these are subordinate courts at the village level which provide
a system for alternate dispute resolution in villages.

5. Tribunals: The Constitution provides the government with the power to set up special
Tribunals for the administration of specific matters such as tax cases, land cases, consumer
cases etc.

Appellate jurisdiction refers to the authority of a court to rehear/review a case decided by a

lower court. In India, appellate jurisdiction is vested in both the Supreme Court and High
Courts. They may either overrule or uphold the judgments of lower courts.

Civil Courts

Civil courts provide remedies for civil wrongs committed by individuals against other
individuals and entities. Civil matters range from property disputes to breaches of contract to
divorce cases. Civil courts follow the principle of ubi jus ibi remedium (for every wrong the
law provides remedy). Unless expressly or impliedly barred by any other law in force, civil
courts have the jurisdiction to try all suits of civil nature.

The Code of Civil Procedure (CPC) 1908 governs the procedures to be followed by civil
courts in administering civil cases in India.

As a matter of fact, every suit must be instituted before the court of lowest jurisdiction (the
Munsif court). Upon institution, it is decided whether the respective court has competence to
try the case.

The Civil Court hierarchy in districts is as follows:

 1. District Court: The court of district judges is the highest civil court in a district. It
exercises both judicial and administrative functions. The District Judge combines the powers
of trying both civil and criminal cases. Hence, they are designated the District and Sessions
Judge.

2. Sub-judge Court: if the value of the subject-matter of the suit is worth more than
Rs. 1 lakh, the Sub-judge and Additional Sub-judge courts may try the suit.

3. Additional Sub-judge Court: this is created based on the case-load.

4. Munsif Court: if the value of the subject-matter of the suit is worth Rs. 1 lakh or
below, the Munsif court is competent to try the suit.

Criminal Courts

The power of the various criminal courts is mentioned under the Code of Criminal Procedure
(CrPC).
According to Section 26 of the CrPC, any offence mentioned under the Indian Penal Code may
be tried by:
 High Courts
 Courts of Session
 Any other Court as specified in the First Schedule of the Code of Criminal Procedure.
Supreme Court
of India

Special Consumer
Tribunals
High Court Purpose Courts
Courts

Revenue Metropolitan
District Courts
Courts Courts

Magistrate
Sub Courts
courts
Judicial Gram
Executive Magistrate Civil Courts
Courts Nyayalaya
Courts
 Power and Jurisdiction of High Court
The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian
Constitution talk about the High Courts, their organisation and powers. The Parliament can
also provide for the establishment of one High Court for two or more states. Currently, there
are 25 High Courts in India.

The various kinds of the jurisdiction of the High Court are briefly given below:

Original Jurisdiction –

 The High Courts of Calcutta, Bombay and Madras have original jurisdiction in criminal
and civil cases arising within these cities.

 An exclusive right enjoyed by these High Courts is that they are entitled to hear civil
cases which involve property worth over Rs.20000.

 Regarding Fundamental Rights: They are empowered to issue writs in order to enforce
fundamental rights.

 With respect to other cases: All High Courts have original jurisdiction in cases that are
related to will, divorce, contempt of court and admiralty.

 Election petitions can be heard by the High Courts.

Appellate Jurisdiction -

 In civil cases: an appeal can be made to the High Court against a district court’s
decision.

 An appeal can also be made from the subordinate court directly if the dispute involves
a value higher than Rs. 5000/- or on a question of fact or law.

 In criminal cases: it extends to cases decided by Sessions and Additional Sessions

Judges.

o If the sessions judge has awarded imprisonment for 7 years or more.

o If the sessions judge has awarded capital punishment.

 The jurisdiction of the High Court extends to all cases under the State or federal laws.

 In constitutional cases: if the High Court certifies that a case involves a substantial
question of law.
High Court Powers

As a Court of Record

 High Courts are also Courts of Record (like the Supreme Court).

 The records of the judgements of the High Courts can be used by subordinate courts for
deciding cases.

 All High Courts have the power to punish all cases of contempt by any person or
institution.

Administrative Powers

 It superintends and controls all the subordinate courts.

 It can ask for details of proceedings from subordinate courts.

 It issues rules regarding the working of the subordinate courts.

 It can transfer any case from one court to another and can also transfer the case to itself
and decide the same.

 It can enquire into the records or other connected documents of any subordinate court.

 It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.

Power of Judicial Review

 High Courts have the power of judicial review. They have the power to declare any law
or ordinance unconstitutional if it is found to be against the Indian Constitution.

Power of Certification

 A High Court alone can certify the cases fit for appeal before the Supreme Court.
High Court Autonomy

The independence of the High Courts can be corroborated by the points given below:

1. Appointment of Judges: The appointment of judges of the High Court’s lies within
the judiciary itself and is not connected to the legislature or the executive.

2. Tenure of the Judges: High Court judges enjoy the security of tenure till the age of
retirement, which is 62 years. A High Court cannot be removed except by an address
of the President.

3. Salaries and allowances: The High Court judges enjoy good salaries, perks and
allowances and these cannot be changed to their disadvantage except in case of a
financial emergency. The expenses of the High Court are charged on the Consolidated
Fund of the State, which is not subject to vote in the state legislature.

4. Powers: The Parliament and the state legislature cannot cut the powers and jurisdiction
of the High Court as guaranteed by the Constitution.

5. Conduct of judges: Unless a motion of impeachment has been moved, the conduct of
the High Court judges cannot be discussed in the Parliament.

6. Retirement: After retirement, High Court judges cannot hold an office of emolument
under the Government of India or that of a state. There is an exception to this clause,
however, when, with the consent of the Chief Justice of India, retired judges can be
nominated to a temporary office, and in the situation of emergencies.
 CRIMINAL CASES

1. The State of Madhya Pradesh Vs. Laxmi Narayan

Court: The High Court of Madhya Pradesh

Bench: Hon’ble Shri Justice Sanjay Dwivedi

Petitioner: Laxmi Narayan

Respondents: The State of Madhya Pradesh & Gorelal Kushwah

FACTS OF THE CASE:

An FIR was lodged in March 2013 against Lature (respondent no.1) Sanjeev (respondent no.2)
and Sant Singh (respondent no.3) and two unknown persons at Police Station Raun, District
Bhind, for the offences punishable under Sections 3071 and 342 of the IPC, which was
registered as Crime No.36/13. It was reported that on 03.03.2013 at about 9:30 p.m., the
complainant Charan Singh, who is an operator of LNT machine was extracting sand of Sindh
River at Indukhi Sand Mine and heard firing from another side of the river. The complainant
then heard some counter firing from this side also. He in a matter of seconds further heard the
words “that take away your machine from here” and some more shots were fired. It is alleged
that some people came from across the river, fired some shots and then threatened the
complainant to leave the area and run away with his machine and never return.

Further, it was reported that an unknown person along with the respondents asked Sanjeev
(respondent no.2) to shoot the complainant to which Sanjeev (Respondent no 2) fired on the
complainant. The group then after shooting the complainant fled away from the spot. The
complainant got injured from the shot and fell off the machine. The bullet had hit the
complainant on the elbow of right-hand and he felt unconscious. The complainant after
recovering to his senses barely managed to reach the village where a person called for a travel
and the complainant was admitted in District Hospital.

1
307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and
if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to
such punishment as is hereinbefore mentioned. Attempts by life convicts. —2[When any person offending under
this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]
2
34. Acts done by several persons in furtherance of common intention: When a criminal act is done by several
persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner
as if it were done by him alone
The respondents were held guilty by the trial court in the alleged incident. The accused after
an amicable compromise with the complainant was acquitted by the High Court of Madhya
Pradesh bearing Criminal Case no 8ooo of 2013 and proceedings u/s 307 r.w.s 34 of the Code
based on the FIR were quashed by the Hon’ble High court exercising its inherent powers u/s
4823 of the Criminal Procedure Code.

Feeling aggrieved and dissatisfied by the impugned judgment and order of the Hon'ble High
Court, quashing the criminal proceedings against the accused of the offences punishable under
Sections 307 and 34 of the IPC, the State of Madhya Pradesh preferred an appeal in the Apex
Court based on the question of law

“Whether the High Court has powers u/s 482 of [Link] to quash prosecution over non-
compoundable offences u/s 307 and 34 of the IPC based on the FIR on the sole grounds of a
compromise arrived?”

"Regarding the apparent conflict between two judgements of the Apex Court given by a two-
member bench; Narinder Singh vs. the State of Punjab (2014) 6 SCC 466 and the State of
Rajasthan vs. Shambhu Kewat (2014) 4 SCC 149”

FACT IN ISSUE:

A FIR was filed against the respondents for an offence u/s 307 and 34 of the IPC. It was alleged
that the respondents had threatened and shot the complainant, due to which he suffered from
various injuries. A medical examination proved that 4 out of the 5 injured were of gunshot and
firearm and the last one was examined via X-Ray probably of a fall from the machine.

The respondents namely Lature (Respondent no.1), Sanjeev (Respondent no.2) and Sant Singh
(respondent no.3) filed an appeal in the High Court regarding quashing of FIR and prosecution
because a compromise arrived between the parties and the complainant was ready to take back
his complaint.

The Hon’ble High Court taking into considerations the facts and the compromised arrived
between the parties quashed the proceedings u/s 307 and 34 of the IPC and acquitted the
respondents of the offence relying upon the judgement of Shiji Pappu & Ors vs Radhika.

3
482. Saving of inherent powers of the High Court. Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this
Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
An appeal was filed in the Apex C0urt against the 0rder 0f High C0urt 0f Madhya Pradesh
quashing the pr0secuti0n u/s 307 and 34 0f the IPC 0n the gr0unds based s0lely 0n an amicable
c0mpr0mise arrived between the parties and because 0f c0ntradicting judgements passed by
the H0n'ble Apex C0urt via the tw0-member bench.

PETITIONER'S ARGUMENT

1. Vehemently submits that the High Court has quashed the prosecution relying solely on
the grounds of the compromise and without considering the effect of the offence on the
society and public at large.
2. Inherent powers under Section 482 of the Cr.P.C have been applied mechanically
without taking into consideration all the facts of the offence and its impact on society.

3. The High Court ought to appreciate the fact that all the compromise and settlements
between the parties need not necessarily meant no chances of conviction or the trial
being destined to exercise of futility.

4. The fact was not given due consideration that the investigation was being carried out, a
statement of the witness recorded and the medical examination well proved the alleged
incident. The prosecution could have proved the offence despite considering the factor
that the complainant might not have supported in the future.

5. The accused were absconding, therefore warrants u/s 704 of the Cr.P.C were issued
against them. The accused also had criminal antecedents.

RESPONDENT'S ARGUMENTS

1. Respondents did not appear in the court for the hearing and the accused were alleged to
have been absconding.
Section 482
The section gives inherent powers to the High Court. It further provides that nothing in the
code shall limit or affect the powers of the High Court. Such inherent powers should be used
judiciously to prevent abuse of the process of any court or secure ends of justice.

4
Form of warrant of arrest and duration.
(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer
of such Court and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
Section 307

The section provides provisions regarding “Attempt to murder”. It is further contended that the
object should be to protect the interest of the society and to deter the criminal in achieving the
professed objective by imposing an appropriate sentence. It is expected that the Courts should
operate the judicial tool of sentencing to deter the offence and which reflects best to the
conscience and morals of the society. This was reiterated in the case of Siddarama and Ors
vs State of Karnataka. It was further held that a lot of criminals who go unpunished create
havoc and everlasting impact in the society. It not only fails the judicial mechanism in operating
for reflecting society’s abhorrence of crime but also dents the credibility imposed by the
society’s cry for justice against the criminals. This was upheld in the case of Union of India
v. Kuldeep Singh, Abu Ram v. Mukna and Ors and Shailesh Jaswantbhai v. State of
Gujarat and Ors.

GIAN SINGH V. STATE OF PUNJAB

The Supreme Court contended that it was against the principles of justice if the High court
quashed criminal proceedings against the accused if the offence involved was heinous and
serious or when public interest is involved. It further contended that any offence primarily of
civil nature like that of offences arising from commercial transactions, where the wrong is
personal in nature and it does not have an impact on the society and the parties have resolved
their dispute by settlement or compromise, the proceedings may be quashed as it would be an
exercise of futility. The Apex Court ruled that in cases of the remote probability of conviction
and where the continuance would be prejudicial to the principles of justice and that to the
accused, using the inherent power, High Courts may quash the criminal proceedings to secure
the ends of justice.

ANAND KUMAR MOHATTA AND ANR V STATE (GOVT OF NCT OF DELHI)

The Supreme Court while quashing the FIR was that the contingencies arising under the
contract, based on which the deposit was to be returned to the Complainant, had not yet arisen.
This was because the developer i.e. the Complainant was yet to handover the owners' share of
the developed property. Even otherwise, the complainant did not demand the amount from the
Appellants. The Supreme Court quashed the FIR and the charge sheet and allowed the appeal.
The Supreme Court held that while exercising the power under section 482 of the CRPC, the
court can quash the FIR even if the charge sheet has been filed, as the power under section 482
is to be exercised to prevent the abuse of process and miscarriage of justice. The Supreme Court
also emphasised that powers under section 482 of the CRPC can be exercised even if a
discharge application before the Magistrate’s Court is pending.

GUIDELINES GIVEN BY SUPREME COURT

In the light of the decision, the Apex Court has laid down guidelines to be considered by High
Courts while exercising the inherent powers under section 482 of Cr.P.C;
I. Serious and Heinous Offence: The High courts should refrain themselves in quashing
prosecution for the series offence having an impact on the society. These offences are
not personal in nature but considered as an offence on the conscience of the society.
II. Special Statutes: Any compromise or settlement between parties concerning offences
under a special statute like Prevention of Corruption Act or committed by public
servants while working in that capacity should be avoided from being quashed.
III. Antecedents/conduct of the accused: The High Court while quashing proceedings u/s
482 of the Cr.P.C for non-compoundable offences of personal or private nature must
take into consideration the conduct of the accused.
IV. Offences u/s 307 of IPC: The High Court must take into consideration the facts and
materials of the case whether the invocation of provisions of Section 307 of IPC is for
the namesake or the probability of it being proved concerning the shreds of evidence
on record.
V. Time of compromise: The Courts should also consider the time of compromise as facts
to be considered before quashing prosecutions whether it is before the investigation,
during or after completion of the same.

JUDGMENT IN A GLANCE

1. Prosecution u/s 307 and 34 of the IPC are considered as heinous crimes and are
considered as an offence on the general society and is not considered to be an offence
of personal nature.
2. Timing of settlement is considered predominantly important whether it is before the
investigation, during or after completion of the investigation.
3. The High Courts have inherent powers to quash proceedings of civil and criminal nature
for compoundable and non-compoundable offences under section 482 of the Code.
4. Antecedents of the accused must be considered in case of quashing of criminal
prosecution for no- compoundable offences which are considered to be private in nature
ANALYSIS

The Hon’ble Apex Court took reliance and material on record from the judgements given by
two-member bench in Narinder Singh vs. State of Punjab and the State of Rajasthan vs.
Shambhu Kewat and stated that despite the same question of law, set guidelines cannot be
established in the cases of quashing of proceedings by the High Court due to a compromise or
settlement between the parties. Every case is considered to be a new day with different
materials, pieces of evidence and facts on records.

The Apex Court laid down the precedents regarding compounding of offences in various case
laws. In the case of State of Karnataka v. L. Muniswamy&Ors, the Hon'ble High Court held
that the High Court was entitled to quash the proceedings if it came to the light of the court that
quashing the proceedings was inevitable to meet the ends of justice. It further held that the
section of Cr.P.C provided the High Courts with the inherent power to quash proceedings in
case of civil and criminal cases. It was further held that court proceedings must not be
permitted to degenerate into a weapon or means of unnecessary harassment and persecution.

In Madhavrao Jiwajirao Scindia and Ors. v. SambhajiraoChandrojiraoAngre and

Ors. it was held by the Court that the High Court should take into consideration all special
features which appear in a particular case to consider it for continuing the prosecution or
quashing the same. The court must not be utilised for any oblique purpose and wherein the
opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose
is likely to be served by allowing a criminal prosecution to continue, the court may while taking
into consideration special facts of a case also quash the proceeding even though it may be at a
preliminary stage.

In a criminal case, the veiled object behind a prosecution, the very colour and nature of the
material on which the basic structure of the prosecution rests and probability and possibility
that would justify the High Court in quashing the proceeding for meeting the ends of justice or
in the interest of justice. It was further contended that meeting the ends of justice are more
important and inevitable than meeting the ends of mere law, though justice has to be
administered and given only according to laws made by the legislature. The compelling
necessity for making these observations is that without a just realisation of the objective and
purpose of the provision which seeks to save the inherent powers of the High Court to do justice
between the State and its subjects it would be impossible to appreciate the width and contours
of that salient jurisdiction.
 2. Matang Sinh Vs. The Central Bureau of Investigation
C.R.R. No. 637 of 2015

Court: The High Court of Calcutta

Bench: Hon’ble Mr. Justice Shib Sadhan Sadhu

Petitioner: Mr. Sabyasachi Banerjee, Mr. Pradip Sancheti, Mr. Pratim Dasgupta

Respondents: Mr. Asraf Ali, Mr. Sankar Banerjee

FACTS OF THE CASE:

The petitioner by means of the present petition under Sections 397/401 read with Section 482
of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for brevity) seeks
to quash/set aside the impugned order dated 15th February, 2015 passed by the Learned
Additional Chief Judicial Magistrate, Alipore.
The petitioner was served with a notice under Section 160 of the Cr.P.C. by the Additional
Superintendent of Police, CBI, SCB (SIT), Kolkata asking him to appear before the
Investigating Authority at CGO Complex, BS Block, Salt Lake, Kolkata on 31.01.2015 at 11
a.m. The petitioner assisted the process of investigation but surprisingly enough he was
informed that he has been arrested by the Opposite Party at 6 p.m. in the evening. Thereafter
he was taken to N.R.S. Hospital for medical examination and thereafter he was referred to
SSKM hospital wherein he was admitted. Learned Magistrate on hearing both the sides rejected
the prayer for bail made on behalf of the petitioner and took the accused / petitioner in judicial
custody till 13.02.2015. On 03.02.2015 the O.P. filed an application before the Learned
Magistrate praying for direction upon the Superintendent, SSKM Hospital and the Jail
Authority for production of the petitioner after being discharged from the hospital and the
Learned Magistrate accordingly passed order directing the Superintendent of Alipore Central
Correctional Home to produce the petitioner as soon as he is discharged from the hospital.

On 07.02.2015 after being released from SSKM Hospital, the petitioner was produced before
the Learned Magistrate and on the prayer of the Investigating Agency the petitioner was
remanded to police custody till 11.02.2015. On 08.02.2015 he was again admitted to S.K.K.M.
Hospital on account of some extreme medical exigencies and for that the petitioner could not
be produced on 11.02.2015. The prayer for further police custody was rejected and the Learned
Magistrate directed further production of the petitioner on 13.02.2015. But on 13.02.2015 the
petitioner could not be produced and prayer for further police custody was rejected. On
15.02.2015 the petitioner was produced before the Learned Magistrate and the Investigating
Authority prayed for another seven days’ police custody. The Learned Magistrate considered
such prayer and remanded the petitioner to police custody till 21.02.2015. On 21.02.2015 the
petitioner was produced and he was remanded to judicial custody till 07.03.2015. Thus it
becomes evident that the petitioner was remanded to police custody beyond the period of 15
days of his first order of remand passed on 01.02.2015.

The impugned order dated 15.02.2015 is absolutely illegal because the Magistrate is
empowered under Section 167 of the Cr.P.C. to remand an accused to police custody only for
the first 15 days from the date of arrest. But in the instant case since the petitioner was arrested
on 31.01.2015, the first fifteen days expired on 14.02.2015 and hence the impugned order dated
15.02.2015 allowing prayer for police remand till 21.02.2015 is bad in law and is liable to be
set aside/quashed.

FACT IN ISSUE:

The impugned order dated 15.02.2015 is absolutely illegal because the Magistrate is
empowered under Section 167 of the Cr.P.C. to remand an accused to police custody only for
the first 15 days from the date of arrest. But in the instant case since the petitioner was arrested
on 31.01.2015, the first fifteen days expired on 14.02.2015 and hence the impugned order dated
15.02.2015 allowing prayer for police remand till 21.02.2015 is bad in law and is liable to be
set aside/quashed.
From which date the first period of fifteen days mentioned in Section 167 (2) of the Cr.P.C. is
to be computed.

RESPONDENT'S ARGUMENTS

 Since the accused person was not produced in person before the Learned Magistrate on
01.02.2015, the order passed by the Learned Magistrate remanding the petitioner to
judicial custody is without jurisdiction and they have already challenged such order
before the Learned Sessions Judge, Alipore and such order has been stayed.
 The fifteen days should be counted from the date of production of the accused in person
before the Learned Magistrate as per provision of the Clause (b) of the proviso of
Section 167 (2) Cr.P.C.

 Thus, according to him, the impugned order is quite legal and correct and it should not
be interfered with.
JUDGMENT IN A GLANCE

 Article 22 of the Indian Constitution provides for protection against arrest and detention
in custody of a person. Sub-Article (2) thereof prescribes production of any person
arrested and detained in custody before the nearest Magistrate within a period of
twenty-four hours of such arrest in the following term:
“Article 22 (2) Every person who is arrested and detained in custody shall be produced
before the nearest Magistrate within a period of twenty-four hours of such arrest excluding
the time necessary for the journey from the place of arrest to the Court of the Magistrate
and no such person shall be detained in custody beyond the said period without the authority
of a Magistrate.
Nothing in Clauses (1) and (2) shall apply –
(a) To any person who for the time being is an enemy alien; or
(b) To any person who is arrested or detained under any law providing for preventive
detention.
Exceptions are provided for such production within a period of twenty-four hours of arrest
in Sub-Article (3) only in case relating to enemy alien and preventive detention.

 Section 54 of the Cr.P.C. provides for examination of arrested person by Medical

Officer. Section 54 Cr.P.C. as it stands after amendment Act 5 of 2009 with effect from
31.12.2009 reads as follows:
“54. Examination of arrested person by any Medical Officer: -
(1) when any person is arrested, he shall be examined by a Medical Officer in the
service of Central or State Government and in case the Medical Officer is not available
by a registered Medical Practitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall
be made only by or under the supervision of a female Medical Officer, and in case the
female Medical Officer is not available, by a female registered Medical Practitioner.

(2) the Medical Officer or a registered Medical Practitioner so examining the arrested
person shall prepare the record of such examination, mentioning therein any injuries or
marks of violence upon the person arrested, and the approximate time when such
injuries or marks may have been inflicted.
 (3) Where an examination is made under Sub-Section (1), a copy of the report of such
examination shall be furnished by the Medical Officer or registered Medical
Practitioner, as the case may be, to the arrested person or the person nominated by such
arrested person.

 Section 55A Cr.P.C. provides that it shall be duty of the person having the custody of
an accused to take reasonable care of the health and safety of the accused. The duty
under Section 55 A is subject to the duty under Section 56 Cr.P.C. Section 56 Cr.P.C.
enjoins duty on the Police Officer making arrest to take the person so arrested or send
that person before a Magistrate having jurisdiction in the case or before the Officer-in-
Charge of a police station.
 In the case in hand, it is his duty to take or send the person arrested before the Magistrate
having jurisdiction in the case. Section 57 Cr.P.C. commands that no police officer shall
detain in custody a person arrested without warrant for a long period exceeding twenty-
four hours which period is exclusive of the time necessary for the journey from the
place of arrest to the Magistrate. The only relaxation for production of the arrested
accused within twenty-four hours contained in Section 57 Cr.P.C. is in case the
Magistrate under Section 167 Cr.P.C. by special order authorized the police officer to
detain such person for a period of more than twenty-four hours. Section 167 (1) Cr.P.C.
reiterates duty of the police officer in the following language:

“167. Procedure when investigation cannot be completed in twenty-four hours: -

(1) whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty four hours fixed by
Section 57, and there are grounds for believing that the accusation or information is
well-founded, the Officerin-Charge of the police station or the police officer making
the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time forward the accused to such Magistrate.
 On such production of the arrested person by the police officer who effected arrest,
before the Magistrate, it is open to the Magistrate under Sub-Section (2) of Section 167
Cr.P.C. to authorize detention of the accused person to such custody as such Magistrate
thinks fit for a prescribed term. Such authorized custody by the Magistrate may be
 custody of the accused in prison by way of judicial remand or custody of the person to
the police by way of police custody.
 Without such authorization from the Magistrate under Section 167 (2) Cr.P.C. the
police officer who arrested the accused person has no discretion to keep the accused
person in his custody either in police station or in his house or in a hospital or in any
other place, in the light of the above provisions of the Constitution of India and the
Code of Criminal Procedure, 1973.
 In case an arrested accused person acquired any health problem after his arrest, then it
is for the police officer to produce the accused before the Magistrate within twenty four
hours after obtaining Medical Certification of the accused from a Government Doctor
and thereafter it is for the Magistrate who after authorising the custody of the accused
to this specified authority under Section 167(2) Cr.P.C. to take a decision and to give a
direction either to prison authorities in case the accused is authorised to be detained in
prison or to the police authorities in case the accused is authorized to be detained in
police custody, for getting necessary medical aid and to provide necessary medical
facilities to the accused so detained.
 In the light of the observations which were obtained after following the principles laid
down by the Hon’ble Supreme Court, this Court is of the firm view that the police
custody cannot be ordered in any circumstances beyond the first remand period of
fifteen days. In such view of the matter the impugned order under challenge is liable to
be set aside and accordingly it is set aside.
 Within the first 15 days of arrest the Magistrate may remand the accused either to
judicial custody or police custody for a given number of days, but once the period of
15 days expires, the Magistrate cannot pass orders for police remand.
ANALYSIS

The action/inaction of the said C.B.I. Officer in not producing the accused person in this case
before the Magistrate and in allowing the accused person to remain in hospital is in clear
violation of the above constitutional and legal provisions. Any custody of the accused beyond
twenty-four hours without production of the accused before the Magistrate, becomes illegal as
well as unconstitutional. When the accused was arrested on 31.01.2015 at 6 p.m. at the office
of Additional Superintendent of Police, C.B.I., SCB (SIT), Kolkata, the accused should have
been produced before the Magistrate at Alipore immediately thereafter or within reasonable
time. Without there being prima facie case against the accused from the evidence collected by
the said C.B.I. Officer.

It is not for the police officer to admit the accused in a hospital and to violate legal and
constitutional mandate of production of the arrested accused before the Magistrate within
twenty-four hours of his detention under arrest. Such action on the part of the police officers is
likely to lead unscrupulous tendencies like in the present case. Their Lordships have taken into
consideration the period of custody during the first remand of fifteen days and the rest of the
statutory period prescribed in Section 167(2) of the Cr.P.C. and made a distinction that the
police custody for the accused is only within first fifteen days from the date of production
before the Magistrate and the remaining period would be only judicial custody.

The above said proposition has been referred by the Hon’ble Supreme Court in a later judgment
in Dinesh Dalmia V. CBI reported in AIR 2008 SC 78: (2007) 8 SCC 770.

“In Anupam J. Kulkarni (AIR 1992 SC 1768) the question which inter alia arose for
consideration of this Court was as to whether the period of remand ordered by an Executive
Magistrate in terms of Section 57 of the code should be computed for the purpose of sub-section
(2) of Section 167 thereof. This Court, keeping in view the provisions of Clause (2) of Article

22 of the Constitution of India, answered the question in the affirmative. It was held that a total
period of remand during investigation is fifteen days.”

Hon’ble Supreme Court emphasized reiterating and restating a view that only during the first
remand period of fifteen days the police custody of the accused can be prayed for further
investigation. The above said legal position has been further clarified by the Hon’ble Supreme
Court in a subsequent and latest decision relied upon by the Learned Counsel for the petitioner
(Satyajit Ballubhai Desai & Ors. V. State of Gujarat).

Such activity on the part of the police officers will give wrong signals to the society and to the
public at large that rich and influential person can manage unscrupulous police officers, so that
they need not go either to a Court or to a prison even after arrest while in custody. The said
C.B.I. Officer prima-facie committed a Constitutional violation in not producing the accused
before the Magistrate within twenty-four hours of his arrest. His action/inaction in this regard
is highly deplorable.
 CIVIL CASES

[Link] Pal Vs. Prabir Kumar Som and Ors.

Court: The High Court of Calcutta

Bench: Hon’ble Mr. Justice [Link]

Petitioner: Mr. Sujit Pal

Respondents: Mr. Prabir Kumar Som

Fact of the Case

The plaintiff-opposite party has instituted the said suit, inter alia, praying for a declaration of
his tenancy right in respect of a room of premises No. 2, Shibdas Bhaduri Street, Calcutta-4
and for a permanent injunction restraining the defendants from interfering with the possession
of the opposite party of the said room. It is the case of the opposite party that he has been a
tenant of the said room, and that the defendants had been trying to interfere with his possession
of the same.

The opposite party made an application for a temporary injunction and the learned Judge passed
an order of interim injunction restraining the defendants from interfering with the possession
of the opposite party of the said room. Despite the interim injunction granted by the learned
Judge, the defendants including the petitioner in violation of the said order of interim injunction
forcibly dispossessed the opposite party from the suit premises.

Fact in issue
This is an application for an interim stay of operation of the order No. 18 dt. July 4, 1985 of
the learned Judge, 9th Bench, City Civil Court, Calcutta, passed in Title Suit No. 887 of 1985.
By the said order, the learned Judge has allowed the application of the plaintiff-opposite party
for a temporary mandatory injunction directing the defendant-petitioner to forthwith open the
padlock put on the main entrance door of the suit premises and restore the possession thereof
to the plaintiff-opposite party. The Officer-in-charge of the Shyampukur Police Station has also
been directed by the learned Judge to take steps for enforcing the said order and to see that no
breach of peace takes place in giving effect to the order.

The opposite party filed two applications, one under the provision of Order 39, Rule 2A and
the other under Section 151 of the Civil P.C. praying for a temporary mandatory injunction
restoring the possession of the opposite party of the said room with police help. The learned
Judge, as stated already, allowed the application for temporary mandatory injunction directing
restoration of possession of the opposite party of the said room in the said premises with police
help.

Being aggrieved by the impugned order of the learned Judge, the petitioner has preferred an
appeal against the same and filed the present application for an interim stay of operation of the
said order. The petitioner has also filed an application under Section 115 of the Civil P.C. in
the alternative. Elaborate submissions have been made by both the parties. The disposal of the
application for interim stay will, in our opinion, virtually dispose of the appeal and the
alternative application under Section 115 of the Civil P.C. Accordingly, we treat the appeal and
the alternative application as on day's list for disposal along with the application for interim
stay.

Petitioner’s argument

Mr. Sakti Nath Mukherjee, learned Advocate appearing on behalf of the petitioner has
challenged the jurisdiction of learned Judge to entertain an application under Section 151 of
the Civil P.C. for a temporary mandatory injunction for the restoration of possession to the
opposite party of the said room. It is submitted by him that as the Civil P.C. has expressly
provided in Order 39, Rule 2A for a remedy for the violation of a temporary or interim
injunction, the Court has no power to grant a temporary mandatory injunction in exercise of its
inherent power. It is contended on behalf of the petitioner that the provision of Order 39, R, 2A
is a provision for execution of an order for a temporary injunction, and that in case of
disobedience of a temporary or an interim injunction, the only remedy of the aggrieved party
is to avail himself of the provision of Order 39, Rule 2A. It is submitted in view of Order 39,
Rule 2A, Section 151 of the Civil P.C. has no manner of application in the case of violation of
a temporary injunction. Our attention has been drawn to Section 51 of the Civil P.C. which lays
down the powers of the Court to enforce execution. It is submitted that an order for a temporary
or an interim injunction can only be executed in the manner prescribed by Order 39, Rule 2A
in view of Section 51 of the Civil P.C. and in no other manner.

Judgment
Thus it is apparent from the said observation of the Supreme Court that no technicality can
prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2A lays
down a punitive measure for the purpose of compelling a party to comply with the order of
injunction. The process as contemplated by the said provision may or may not be ultimately
effective but, in any event, the procedure laid down in Order 39, Rule 2A is incapable of
granting an immediate relief to a party who has been forcibly dispossessed in violation of an
order of injunction. We do not think that in such a case the Court is powerless to grant relief to
the aggrieved party in exercise of its inherent power. The very object for which Order 39, Rule
2A has been enacted will be fulfilled by the grant of a temporary mandatory injunction and
restoration of possession of the aggrieved party. The inherent power of the Court as recognised
in Section 151 of the Code is in addition to the power conferred on the Court under the
provisions of the Code. All that the Court is concerned is to prevent abuse of the process of
Court and to do justice by immediately intervening under circumstances which require such
intervention by the Court.

For the reasons aforesaid, the impugned order of the learned Judge is affirmed and the appeal,
the alternative application under Section 115 of the Code and the application for interim stay
are all dismissed.

Analysis

It is now a well-settled principle of law that when there is a specific provision in the Code in
respect of any mailer, it is not permissible for the Court to pass any order in respect of such
matter under Section 151 of the Code. Much reliance has been placed on behalf of the petitioner
upon a decision of the Supreme Court in State of Bihar v. Rani Sonabati Kumari. In that case,
it has been held by the Supreme Court that though undoubtedly proceedings under Order 39,
Rule 2(3) of the Civil P.C. (which is somewhat similar to the amended provision of Order 39,
Rule 2A) have a punitive aspect, as is evident from the contemnor being liable to be ordered to
be detained in civil prison, they are in substance designed to effect the enforcement of or to
execute the order.

It may be that Order 39, Rule 2A is in the nature of an execution proceeding, but the question
before us is whether the Court has inherent power to grant a temporary mandatory injunction
for the purpose of granting relief to a person who has been dispossessed despite an order of
interim injunction. In the instant case, there is no question of execution of the order of interim
injunction that was granted in favour of the opposite party restraining the defendants including
the petitioner from interfering with the possession of the opposite party of the room in question.
The petitioner has forcibly dispossessed the opposite party from the room and has taken
possession thereof in utter violation of the interim injunction. If the opposite party is asked to
pursue the remedy under Order 39, Rule 2A, it will be doing a great injustice to him inasmuch
as under the said provision, the Court cannot grant immediate relief to the opposite party. So
there is no question of execution of the order of interim injunction. The real question is the
granting of immediate relief to the opposite party by restoring his possession of the room. The
analogy of Order 21, Rule 32 of the Civil P.C. in our opinion, has no manner of application for
the purpose of granting relief to the opposite party. We do not also think that there is any
relevance in considering the applicability of the provision of Section 51 of the Civil P.C. which
relates to the powers of Court to enforce execution. The injury is grave and serious; ends of
justice demands that the Court should at once take steps in granting relief to the opposite party.

In Manohar Lal v. Seth Hiralal, it has been observed by the Supreme Court that a Court can
issue an interim injunction under circumstances which are not covered by Order 39 of the Code,
if the Court is of opinion that the interests of justice require issue of such interim injunction. In
laying down the said proposition the Supreme Court has, amongst others, relied upon the
decision in Bhagat Singh's case (AIR 1941 Cal 670) (supra). The Supreme Court has also
reiterated that the provisions of the Code are not exhaustive, for the simple reason that the
Legislature is incapable of contemplating all the possible circumstances which may arise in
future litigation and consequently for providing the procedure for them. Further, the Supreme
Court observes that it is not possible to hold that the provisions of the Code control the inherent
power by limiting it or otherwise affecting it.

In Hari Nandan v. S. N. Pandita, the Allahabad High Court has taken the same view as we
have, namely, that when a party has been dispossessed in disobedience of the order of
injunction, the Court can in exercise of its inherent power pass such order for ends of justice
as would undo the wrong done to the aggrieved party.
 2. Devaki Vs. Chandrika and Anr.
Court: The High Court of Kerala

Bench: Hon’ble Mr. Justice Ramakrishnan

Petitioner: Devaki

Respondents: Chadrika

Fact of the Case

Facts required to be stated are thus: The suit O.S. 163 of 1991 is one filed by the respondents
against the appellant and her son who is not a party to the appeal. The first respondent is the
mother of the second respondent. Respondents have filed the suit claiming that they are the
wife and son of Sasi, one of the sons of the appellant who has been impleaded as a defendant
along with her in the suit. The prayer in the suit was for a decree for realisation of a total amount
of Rs. 33,801/- being past maintenance for 3 years along with the value of gold ornaments
weighing 4 1/2 sovereigns and the amount of Rs. 5,001/- alleged to be due to the first plaintiff.
Originally the suit was filed as an indigent petition (POP 106/89). On receiving notice, the
appellant and her son Sasi have entered appearance and filed their objection through a counsel.
Later, the POP was allowed and the petition was numbered as O.S. 163 of 1991. Thereafter it
is the case of the appellant that she never received any information from her Advocate and the
suit was decreed ex parte on 13-11-1991. She came to know about the ex parte decree only
when she received notice in the E.P. filed for executing the decree against her. Immediately
thereafter the appellant filed I.A. 1960 and 1961 of 1996 to set aside the ex parte decree and to
condone the delay in filing the application to set aside the ex parte decree. On receiving notice,
the respondents have filed counter-affidavit opposing, the prayers in. the applications. The
applications were posted to 22-7-1997, for examining the appellant. But thereafter the Court
suo motu advanced the case to 27-6-1997 giving notice to the counsel for the appellant. Even
though the counsel for the appellant has sent a letter intimating the advancing of the case to 27-
6-1997 to the appellant, the same was received by the appellant only on the evening of 27-6-
1997. However, when the case was taken up on 27-6-1997, the learned Judge dismissed both
the applications for default rejecting the prayer for a short adjournment made by the counsel
for the appellant. Aggrieved by the order dismissing I.A. 1960 of 1991 appellant has preferred
this appeal.
Fact in issue
The simple relief prayed for in this appeal is to set aside a non-speaking order of dismissal for
default of an application, I.A. 1960 of 1996, filed by the appellant for setting aside an ex parte
decree passed against her in O.S. 163 of 1991 on the file of the Sub Court, Irinjalakuda.
However, two important questions; one of jurisdiction of the Court and the other of procedure,
arise for consideration in this appeal.

Petitioner’s argument

The learned counsel for the appellant has a further contention that the Sub Court, Irinjalakuda
had ho jurisdiction to entertain and dispose of the application as such jurisdiction of the Sub
Court, Irinjalakuda stood excluded as per Section 8 of the Family Courts Act, 1984 (for short
"the Act") on and after the establishment of the Family Court for the area within which Sub
Court, Irinjalakuda is situated. In the circumstances, it was submitted that since the Court had
no jurisdiction to entertain and dispose of the matter, the impugned order is liable to be set
aside on that ground also.

Judgment
We may first consider the question whether the impugned order is sustainable in law or not.
The facts noted above arc not in dispute and as such we are of the view that the learned Judge
was not justified in dismissing the applications, I.A. 1960 and 1961 of 1996 rejecting the prayer
for adjournment made by the counsel for the appellant. It is a case where the applications were
adjourned for the examination of the parties to 22-7-1997 and the Court has suo motu advanced
the case to 27-6-1997 without issuing notice to the parties directly. The notice of advancing the
case was given only to the advocate and the letter sent by the advocate was received by the
appellant only on the evening of 27-6-1997. As such it is a clear case where the appellant cannot
be blamed for her absence in Court on 27-6-1997. In the circumstances we are of the view that
it is an order passed without giving the party a sufficient opportunity to prosecute the same and
as such liable to be set aside for that reason alone.

Admittedly, the Family Court, Ernakulam was established by a notification dated 6-6-1992 and
the area falling within the jurisdiction of Sub Court, Irinjalakuda came within the jurisdiction
of the said Family Court. But a Judge for the Family Court, Ernakulam was appointed only as
per a notification dated 7-7-1992. As such at least with effect from 7-7-1992, if not earlier, the
jurisdiction of all civil courts within the territorial jurisdiction of the Family Court, to entertain
suits of the nature specified in the Explanation to Section 7(1) of the Act stands totally excluded
as per Section 8 of the Act. In this case going by the nature of the reliefs prayed for in the suit
there cannot be any doubt about the fact that the suit in question was one falling within the
purview of the provision in Clauses 'c' and 'f' of the Explanation to Section 7(1) of the Act. As
such if the suit was pending on the date when Family Court was established, Sub Court,
Irinjalakuda would not have jurisdiction to try and dispose of the suit and the same would have
stood statutorily transferred to the Family Court under Section 8 of the Act. But in this case
since the suit was decreed ex parte prior to the establishment of the Family Court, there was no
question of statutory transfer of the suit as such to the Family Court.

In the light of our finding that the Sub Court, Irinjalakuda had no jurisdiction to entertain and
dispose of the applications, the proper procedure which that court ought to have followed was
to receive the applications and on receipt of the applications forward the same to the Family
Court concerned even before entertaining them with appropriate endorsement and with notice
to the petitioner/petitioners; for entertainment and disposal in accordance with law. We are
indicating the above procedure as the proper one because such a procedure would avoid the
necessity of returning the applications for presentation to the Family Court, its presentation
before the Family Court and the forwarding of the records by the Civil Court to the Family
Court in response to the request of the Family Court for records, etc. which would necessarily
cause considerably long delay and protraction of the proceedings. We would further indicate
that as far as suits and proceedings disposed of by the Civil Courts prior to the establishment
of the Family Court and coming within the ambit of the Explanation to Section 7 of the Act are
concerned, it will be legal and proper for the Family Court to entertain and dispose of such
applications/petitions after calling for the records of the disposal of suits or proceedings from
the concerned Civil Courts on the request of the parties.

Appeal is thus allowed. There will be a direction to the Court below to forward the application
numbered as [Link]. 1960 and 1961 of 1996 to the Family Court, Ernakulam with appropriate
endorsements for entertainment and disposal afresh in accordance with law by the Family
Court, Ernakulam. The entire records in O.S. 163 of 1991 should also be forwarded to the
Family Court along with the applications. Parties will bear their respective costs.
Analysis

Section 8 excludes the jurisdiction of all Civil Courts within the local jurisdiction of Family
Court to deal with the categories of suits and proceeding enumerated in the Explanation
to Section 7. All pending suits and proceedings of the categories mentioned in the Explanation
get statutorily transferred to the Family Court on its establishment. Thus the scheme of the Act
is to exclude with reference to the date of establishment of Family Court all the Civil Courts
from exercising all the jurisdictions they were having hither to in respect of the categories of
suits and proceedings mentioned in the Explanation and to confer all such jurisdictions on the
Family Court on its establishment in relation to the particular area for which the Family Court
is established. The above legislative scheme will be evident from the provisions in Section
7(1)(a) and (b) of the Act which is as under :

"Jurisdiction. -- (1) Subject to the other provisions of this Act, a Family Court shall -

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate
civil court under any law for the time being in force in respect of suits and proceedings of the
nature referred to in the Explanation; and

(b) be deemed, for the purpose of exercising such jurisdiction, under such law, to be a district
court or, as the case may be, such subordinate civil court for the area to which the jurisdiction
of the Family Court extends."

It is significant to note that the jurisdiction conferred is the entirety of the jurisdiction exercised
by all the civil Courts in respect of the categories of the suits and proceedings mentioned in the
Explanation to Section 7 and that while exercising such jurisdiction there is a statutory deeming
that Family Court shall be deemed to be civil Courts of different categories for the areas to
which the jurisdiction of such Family Court extends. In the light of the above provision
in Section 7, we would hold that all the jurisdiciton which the Sub Court, Irinjalakuda had in
respect of the suit and the ex parte decree passed therein have stood vested or conferred
statutorily on the Family Court, Ernakulam as per Section 7(1) of the Act and on the
establishment of the Family Court, that Court alone has got exclusive right to exercise all such
jurisdictions. On the passing of the ex parte decree in the suit, defendants had a statutory right
to approach that Court and to file an application to set aside the ex parte decree under Order
IX, Rule 13, C.P.C. with a petition to condone the delay under the Limitation Act for
condoning the delay, if any, occurred in the matter of filing such an application, Sub Court
would have certainly had jurisdiction to entertain and dispose of such application under Order
IX, Rule 13 and Section 5 of the Limitation Act as the Court which had jurisdiction to entertain
and dispose of the suit but for the provisions in Sections 7 and 8 of the Act. As such, such
jurisdiction to entertain and dispose of applications like those filed by the appellant would in
this case stand vested in the Family Court, Ernakulam on its establishment. There is nothing in
the Act to show that civil Courts would continue to have power to exercise all jurisdictions
they had with reference to the suits and proceedings of the category mentioned in the
Explanation which were already disposed of by them prior to the establishment of the Family
Court. On the other hand the wording of the provisions in Section 7 of the Act would clearly
show that all the jurisdiction exercised by the Civil Courts in respect of the suits and
proceedings of the category mentioned in the Explanation to Section 7 whether disposed of,
pending or to be filed would vest in the Family Court to the exclusion of all the civil Courts in
the area to which the jurisdiction of the Family Court extends. On and after the establishment
of the Family Court it cannot also be that parties affected by the ex parte decrees passed in suits
prior to the decree be deprived of their valuable right to file application under Order IX, Rule
13 and Section 5 of the Limitation Act if there occurs delay. It is significant to note in this
connection that there is no provision in the Act saving of the jurisdiction of the Civil Courts in
respect of suits and proceedings covered by the Explanation and disposed of already by the
Civil Courts prior to the establishment of the Family Court. In the circumstances, it has to be
held generally that the entire jurisdiction exercisable by the Civil Courts in respect of suits and
proceedings of the categories covered by the Explanation and already disposed of by them prior
to the establishment of the Family Court would stand statutorily excluded and vested in the
Family Court established for the areas within their jurisdiction and only such Family Court
would have thereafter jurisdiction to entertain any application or petition in such disposed of
matters and to dispose of them in accordance with law.

Anandi Lal's case (1995 (1) Cur Civ Cas 559) (Raj) (supra) was a case where a decree for
recovery of arrears of pay and allowance of a Government employee was passed by the Civil
Court prior to the commencement of the Administrative Tribunals Act, 1985 with effect from
1-11-1985. In 1986 the decree holder filed an application for executing the decree before the
Civil Court which passed the decree. On behalf of the Union of India it was contended that E.P.
filed before the Civil Court was not maintainable in the light of the provisions in Section 37 of
the C.P.C. read along with Sections 14 and 28 of the Administrative Tribunals Act, 1985
excluding the jurisdiction of all the Civil Courts and High Courts and conferring jurisdiction
on the Tribunal regarding service matters. Rajasthan High Court has held that on and after the
commencement of the Administrative Tribunals Act, 1985 the Court which passed the decree
ceases to have jurisdiction to entertain the E.P. and the Tribunal alone had exclusive
jurisdiction to entertain and dispose of the E.P. The legal effect of Sections 28 and 29 of the
Administrative Tribunals Act, 1985 is more or less similar to the legal effect of Sections
7 and 8 of the Act.

In view of principles followed by the Courts while deciding the above two cases and the cases
referred to therein are applicable to the case on hand also, if not on all four at least analogically.
We have already indicated that the provisions contained in Section 7 itself would provide
sufficient reasons to take the above view in this case and we need not rely upon any other
general principle analogically or otherwise in support of the above view.

We would, in the circumstances, hold that entertainment and disposal of the applications, [Link].
1960 and 1961 of 1996 is without jurisdiction and as such liable to be set aside on that ground
also.

Appeal is thus allowed. There will be a direction to the Court below to forward the application
numbered as [Link]. 1960 and 1961 of 1996 to the Family Court, Ernakulam with appropriate
endorsements for entertainment and disposal afresh in accordance with law by the Family
Court, Ernakulam. The entire records in O.S. 163 of 1991 should also be forwarded to the
Family Court along with the applications. Parties will bear their respective costs.
 MATRIMONIAL CASES

1. Smt. Uttara Praveen Thool Vs. Praveen S/o Bhanudas Thool

Case No. First Appeal No. 308 of 1998

Court: High Court of Bombay at Nagpur

Bench: The Hon’ble Mr. Justice B.P. Dharmadhikari & The Hon’ble Mr. Justice A.S.
Chandurkar

Appellant – Uttara Thool

Respondent – Praveen Thool

Fact of the Case

The marriage between the parties was solemnized on 2-12-1992. Out of said wedlock, the
appellant gave birth to a son on 27-8-1993. According to the respondent, after the birth of said
child the appellant did not return to her matrimonial home for no justifiable reason. Hence, on
22-12-1994, the respondent preferred Hindu Marriage Petition under Section 9 of the Hindu
Marriage Act 1955 (hereinafter refer to as the said Act) bearing No.364 of 1994 for restitution
of conjugal rights. During pendency of said proceedings, the respondent amended his pleadings
and in the alternate sought a decree for divorce on the ground of mental cruelty on the basis of
desertion by the appellant. The parties went to trial and on the basis of the material on record,
the Family Court, Nagpur by judgment dated 8-6-1998 was pleased to allow the petition filed
by the respondent and thereby passed a decree of divorce on the ground of cruelty.

In the petition filed under Section 9 of the said Act, it was pleaded by the respondent that from
the second month of the marriage itself, the appellant was requesting for grant of divorce. It
was stated that the appellant disliked the idea of a joint family and hence, the respondent started
living separately from his mother and brother. It is further pleaded that after the birth of their
son on 27-8-1993, the appellant's father took her to their native place and since then for no
justifiable reason, the appellant had deprived the respondent of her company and had failed to
fulfill her obligation as wife. On 23-12-1993, the appellant along with her father, informed the
respondent that it was not possible for the appellant to live with the respondent. Despite efforts
through mediators, the appellant did not return to the matrimonial home and hence, on 22-12-
1994 aforesaid petition seeking restitution of conjugal rights was filed by the respondent.
According to the appellant, the respondent used to treat her cruelly and keep her without food
for 2 to 3 days. The respondent used to beat her and abuse her. It was further pleaded that in
July, 1993, the respondent had called the appellant's mother and had demanded Rs.4,000/- from
her and threatened that if said demand was not met, the mother should take back her daughter.
Despite intervention of Panchas, the respondent did not listen to them due to which the
appellant was forced to return to her father's home. Despite a message being given about the
birth of a child, the respondent did not accept the sweets that were sent in that regard. The
respondent did not attend the ceremony that was held for naming the child. Ultimately, on 23-
12-1993 though the appellant had returned to the respondent's house along with their child, the
appellant was not permitted to enter the house in the presence of various persons.

The respondent examined himself, his brother-in-law - Manishankar Patil bel and another
brother-in-law Vitan Borkar. The appellant examined herself below, her father Manohar
Shevde, Shiodas Betal, her maternal uncle and one Ashok Naranje below Exh.85. On the basis
of the aforesaid pleadings and the evidence led by the respective parties, the learned Judge of
the Family Court recorded a finding that the appellant had treated the respondent with cruelty,
that she had withdrawn from the respondent's society without any reasonable cause and hence,
the respondent was entitled for a decree of divorce on the ground of cruelty. Thus, by judgment
dated 8-6- 1998, the marriage between the parties was dissolved by a decree of divorce on the
ground of cruelty.

Fact in issue

The appellant had filed proceedings for grant of maintenance under Section 125 of the Code of
Criminal Procedure and with a view to defeat the appellant's right, the present proceedings for
restitution of conjugal rights was filed. The appellant, therefore, prayed for dismissal of the
proceedings.

1. Whether failure on the part of the Family Court to frame the issue pertaining to the
claim for restitution of conjugal rights has resulted in vitiating the judgment?

2. Whether a decree for divorce could be sought as a relief in a petition filed under Section
9 of the said Act for restitution of conjugal rights?
3. Whether on an amendment permitting a prayer for grant of divorce in such proceedings
being granted, the same relates back to the date of filing of the proceedings?
4. Whether decree for divorce needs to be granted on the ground that there has been an
irretrievable breakdown of the marriage?
 5. Whether the respondent is entitled for a decree of divorce on the ground of cruelty?
6. What relief?

Petitioner’s argument

On behalf of the appellant - wife, it was urged by her learned Counsel Mrs. V. Thakre that the
Family Court erred in granting the decree for divorce on the ground of cruelty. It was submitted
that though initially the petition was filed under Section 9 of the said Act for restitution of
conjugal rights, no issue in that regard was framed while deciding the said proceedings. It was
submitted that by seeking restitution of conjugal rights, the respondent had condoned all earlier
incidents that had occurred and hence, on said count, a decree for divorce could not have been
passed. It was further submitted that in proceedings for restitution of conjugal rights, there
could not be a prayer for grant of divorce on the ground of cruelty as such pleadings were
mutually destructive and prayers were opposed to each other. It was further submitted that
though the statutory period of two years as contemplated under Section 13 of said Act was not
complete when the initial proceedings were filed, by permitting the petition to be amended for
seeking the relief of divorce, the support respondent had got over aforesaid statutory bar. In of
the aforesaid submission, the learned Counsel for the appellant relied upon the Reema Bajaj v.
Sachin Bajaj.

The first part of O.6 R.17 of the Civil P.C. Providing that the Court may allow either party to
amend his pleading, has given rise to a general impression that amendments of pleading always
rest in the discretion of a Court. The impression, however deep-rooted, is not well-founded, for
it ignores the second part of R. 17 providing that all such amendments shall be made as may
be necessary for the purpose of determining the real questions in controversy between the
parties. The user of the two words May and shall in such close proximity in the same sentence
would at once demonstrate that one cannot mean the other, unless we choose to, which we
should not, think that the Legislature had no sense of words. The conclusion, therefore, must
be that while the first part of R. 17 dealing with amendments in general vests the Court with
discretion, the later part, dealing with such amendments as are necessary for the purpose of
determining the real controversy between the parties, imposes an obligation on the Court, and
not merely a discretion, to allow such amendments. The observation of the Privy Council
in Shamu Patter V. Abdul Kadir (1912) ILR 35 Mad 607 at p.612 must be taken to be a clear
authority on the point, where analogous provisions of S. 149 of the preceding Code of Civil
Procedure of 1882, corresponding to O. 14 R. 5 of the present Code, were being considered.
In the instant case, the impugned order dated 3.11.2009 by which amendment has been allowed,
is to be viewed from general law on the issue of amendment which could only be allowed when
it is necessary to decide the real controversy between the parties. Here, in the instant case, the
real controversy between the parties, initially and till the date of passing of the impugned order,
was restitution of conjugal rights and in case after passing of the decree for restitution of
conjugal rights in a proceeding, there has been no restitution of conjugal rights as between the
parties to the marriage for a period of one year or upwards, then the same would amount to
desertion as per Explanation and the same is one of the grounds for divorce. Even otherwise
also, the date of filing of the suit / application which was April, 2007, remain the same and on
the date of final desertion i.e.10.8.2006, shown in the application u/s 9 of the Act of 1955, the
continuous period of not less than two years immediately preceding the presentation of the
petition was not completed. Here, in the instant case, filing of the application for restitution of
conjugal rights amounts to condonation or forgiveness of the alleged act of cruelty till the date
of filing of the amendment application dated 7.5.2009, which is now one of the grounds for
divorce. The said condonation amounts to amendment and a party cannot be allowed to back
out from the admission. In the present case, the real controversy between the parties was with
regard to the relief of restitution of conjugal rights initially and further, in case the amendment
is allowed, then the Court/Family Court will be debarred from considering the said real
controversy of restitution of conjugal rights, which was initially raised and continued upto the
date of filing of the application for amendment, therefore, the amendment of conversion of
restitution of conjugal rights into divorce stands on altogether different footing from claiming
the same as an alternate or additional relief of divorce in a petition for restitution of conjugal
rights and the provisions of Order VII Rule 7 CPC are not applicable and Sec.13A of the Act
of 1955 cannot be taken into consideration. The amendment sought is not imperative or proper
for effective adjudication of the case initially filed u/s 9 of the Act of 1955 for restitution of
conjugal rights. In case the amendment is allowed, it will cause prejudice or injustice to the
petitioner Wife. The prayer for restitution of conjugal rights and divorce are two diametrically
opposite prayers and the conversion cannot be allowed by way of amendment as allowing the
aforesaid amendment will also result in change of nature of the suit / application.

Respondent’s argument

On the other hand, Mrs. R. Sirpurkar, the learned Counsel appearing for the respondent –
Reema Bajaj vs Sachin Bajaj, Husband supported the impugned judgment. It was sought
submitted that though initially the respondent had restitution of conjugal rights by filing
aforesaid proceedings under Section 9 of the said Act, in view of the stand of the appellant
before the Marriage Counselor that she was not ready to reside with the respondent and in view
of absence of any justifiable cause assigned by the wife for living separately from her husband,
the respondent was compelled to seek divorce on the ground of cruelty. It was submitted that
though various allegations were made by the appellant in her pleadings as regards ill-treatment
and cruelty on the part of the respondent, the same were not substantiated by leading any cogent
evidence. It was urged that failure to frame the issue as regards the restitution of conjugal rights
did not have the effect of vitiating the impugned judgment. It was further submitted that the
parties were living separately since August 1993 i.e. after the birth of the child and hence, the
Family Court was justified in passing the decree for divorce. It was further submitted that
though the appellant had pleaded that there was a demand for dowry, no evidence in that regard
was led by the appellant. On the contrary, it was the appellant who was guilty of deserting the
respondent for no justifiable cause and the same, therefore, entitled the respondent for grant of
divorce on account of desertion resulting in cruelty. It was further breakdown of igurged that
there was a marriage and both parties having been irretrievable separated for almost 20 years,
they could not be expected to live together as husband and wife. By filing an additional affidavit
on record, it was submitted that the respondent had contracted the second marriage on 30th of
November 1998. The learned Counsel for the respondent has relied upon the following
judgments in support of her submissions: Shri Kishorilal Govindram Bihani vs Sou.
Dwarkabai Kishorilal Bihani.

The time factor is one of consequence because the statute prescribes a continuous period of
desertion extending to two years as the time-span which is fatal to the marriage. It is obvious
that sufficient allowance has been made even for difficult situation, for the law takes
cognizance of the fact that there is a limit to reasonableness and to the length of time for which
the opposite party can be made to suffer and, therefore, the cause of action arises immediately
on its being established that desertion has taken place for a continuous period of two years.

Accordingly, set aside the judgment and order of the trial Court dated 29-1-1990. The appeal
is allowed. The appellant shall be entitled to a decree of divorce under section 13 of the Hindu
Marriage Act from the respondent on the ground of desertion. As far as consequential reliefs
relating to maintenance, etc., are concerned, we are not called upon to deal with that matter in
so far as we are informed that proceedings are pending before the learned Single Judge of this
Court. It shall be open to the parties to seek appropriate orders from that Court in the light of
our judgment.

Judgment

The respondent had filed the present proceedings under Section 9 of the said Act seeking
restitution of conjugal rights. In paragraph nos.6, 9 & 10 of the petition, he had made various
assertions in support of aforesaid relief. In reply thereto, the appellant had denied the claim as
made by the respondent. This, therefore, gave rise to an issue pertaining to the claim of the
respondent for restitution of conjugal rights. Such issue, however, was not framed by the
learned Judge of the Family Court. It is, therefore, necessary to consider whether failure to
frame said issue has resulted in vitiating the impugned judgment.

In this regard, the provisions of Section 99 of the Code of Civil Procedure may be noticed.
Under Section 99, no decree can be reversed or substantially varied on account of any defect
or irregularity in any proceedings not affecting the merits of the case of the jurisdiction of the
Court. Though failure to frame an issue that arises on the basis of the pleadings of the rival
parties would amount to an error being committed by the Trial Court that by itself will not be
a ground to reverse the impugned judgment. It is necessary to note here that during pendency
of the proceedings, the respondent had made another prayer seeking grant of divorce on the
ground of desertion. Such prayer was trial permitted to be added. The parties thereafter went
to and contested the proceedings. While the respondent led evidence for grant of divorce, the
appellant led evidence to demonstrate that the respondent was not entitled for said relief.
Therefore, the prayer for divorce was, in fact, contested as being the main relief sought in said
proceedings. Further, assuming that the issue pertaining to claim for restitution of conjugal
rights was framed and answered against the respondent, the same would not have resulted in
dismissal of petition in view of the other prayer in the proceedings. Similarly, the nature of
evidence for seeking the relief of restitution of conjugal rights and for seeking divorce on the
ground of desertion would naturally be of a distinct nature. Such evidence could not be
overlapping. In these circumstances, therefore, it is clear that the parties have contested the
proceedings with regard to the prayer for grant of divorce, mere failure on the part of the learned
Judge of the Family Court in framing the issue as regards restitution of conjugal rights would
not have the result of vitiating the impugned judgment. In any event, the appellant before
commencement of the evidence did not raise any grievance before the Family Court that the
issue pertaining to restitution of conjugal rights had not been framed. Hence, taking an overall
view of the matter, we find that the failure on the part of the Family Court in framing the issue
as regards the claim for restitution of conjugal rights has not resulted in vitiating the impugned
judgment. Point no.1, therefore, stands answered accordingly.

As to Point No.2: This takes us to consider the next point as to whether a decree for divorce
could be sought as an alternate relief in a petition filed for restitution of conjugal rights. While
a petition for restitution of conjugal rights is required to be filed under Section 9 of the said
Act, a petition seeking divorce is required to be filed on the grounds stipulated in Section 13 of
the said Act. In the present case, initially, the proceedings were filed merely for restitution of
conjugal rights. By subsequently amending the aforesaid proceedings, the relief for grant
of divorce on the ground of cruelty was sought to be made. As noted above, the requirements
of Section 9 and Section 13(1)(i-b) of the said Act are distinct.

According to the learned Counsel for the appellant, the relief of restitution of conjugal rights
cannot go hand in hand with the relief of divorce. Both reliefs were diametrically opposite. In
support of the aforesaid submission, the learned Counsel for the appellant relied upon the
decision of Himachal Pradesh High Court in Baldeoraj (Supra).

The respondent shall continue to pay a sum of Rs.1500/- per month in addition to the deduction
of Rs.896/- per month from his salary to the appellant in terms of joint purses dated 8-12-2003
till said arrangement is duly modified in accordance with law.

Analysis

The respondent examined himself, his brother-in-law - Manishankar Patil bel and another
brother-in-law Vitan Borkar. The appellant examined herself below, her father Manohar
Shevde, Shiodas Betal, her maternal uncle and one Ashok Naranje below Exh.85. On the basis
of the aforesaid pleadings and the evidence led by the respective parties, the learned Judge of
the Family Court recorded a finding that the appellant had treated the respondent with cruelty,
that she had withdrawn from the respondent's society without any reasonable cause and hence,
the respondent was entitled for a decree of divorce on the ground of cruelty. Thus, by judgment
dated 8-6- 1998, the marriage between the parties was dissolved by a decree of divorce on the
ground of cruelty.

No merit in the challenge to the decree passed by the Family Court. Both the parties have filed
affidavits on record on the aspect of amount of maintenance. From the material on record, it is
clear that the appellant was serving as an Anganwadi Sevika at Samudrapur and is getting
Rs.4000/- per month. The son born on 27-8-1993 has now attained the age of majority. The
respondent in his affidavit has stated that he is paying an amount of Rs.1500/- towards
maintenance to the appellant and her son in addition to an amount of Rs.896/- that is being
deducted from his salary. This arrangement is in force since 8-12-2003 as per orders passed on
the pursis signed by both sides. Said arrangement can, therefore, be directed to be continued
till it is modified in accordance with law. Hence, while dismissing the appeal, it is directed that
the arrangement as jointly arrived at by the parties and as ordered by this Court on 8-12-2003
shall continue to operate till it is modified in accordance with law. Point No.6 stands answered
accordingly.
 2. Rajat Gupta Vs. Rupali Gupta
Court: The High Court of Delhi

Bench: Hon’ble Justice Hima Kohli, Hon’ble Justice Deepa Sharma

Petitioner: Rajat Gupta

Respondent: Rupali Gupta

Fact of the Case

The backdrop in which the reference has been made by the learned Single Judge on the four
questions of law extracted above, is that a batch of contempt petitions were placed before the
said Court, alleging inter alia willful disobedience of the undertaking given by a spouse to
appear, sign and file, both, the Section 13B(1) petition and the Section 13(B)(2) motion
under the Hindu Marriage Act, 1955 (in short „the Act‟). The undertakings given by the
spouses were accepted by the Court either at the stage of filing the Section 13 B(1) petition or
were incorporated in a consent decree. It was noted that except in [Link](C) 1147/2016
and 1251/2016, the undertakings in all the remaining cases, as furnished to the concerned courts
and duly accepted, were against consideration.

Fact in issue

These matters have been placed before this Bench by Hon‟ble the Acting Chief Justice in terms
of an order dated 09.01.2017, passed by a learned Single Judge of this Court in the captioned
contempt petitions wherein the following four questions of law have been framed for
consideration:-

1. Whether a party, which has under a settlement agreement decreed by a Court

undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of
the Act, 1955 or both and has also undertaken to appear before the said Court for
obtaining divorce ―can be held liable for contempt‖, if the said party fails to file or
appear in the petition or motion or both to obtain divorce in view of the option to
reconsider/renege the decision of taking divorce by mutual consent under Section
13B(2) of the Act?
2. Whether by undertaking before a Court to file a second motion under Section 13 B
(2) of the Act, 1955 at Section 13B(1) stage or by giving an undertaking to a Court to
that effect in a separate court proceeding, a party waives its right to rethink/renege
 under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party
under Section 13 B (2) of the Act, 1955?
3. Whether any guidelines are required to be followed by the Court while recording the
undertaking/agreement of the parties with respect to a petition under Section 13 B (1)
or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce?
4. Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia (supra) are good law
in view of the doubts expressed by this Court in paras 19 to 28 and in view of the
Division Bench judgment in Dinesh Gulati (supra).

Petitioner’s argument

These matters have been placed before this Bench by Hon‟ble the Acting Chief Justice in terms
of an order dated 09.01.2017, passed by a learned Single Judge of this Court in the captioned
contempt petitions wherein the following four questions of law have been framed for
consideration:-

Confronted with the differing stands taken by both sides where on the one hand, learned
counsels for the petitioners had urged that contempt is attracted for breach of the undertaking
accepted by the court to file a Section 13B(1) petition as well as a Second motion under Section
13B(2) of the Act for divorce and it should be treated as a willful breach of the undertaking
given to the court, and on the other hand, the stand of the learned counsels for the respondents
was that refusal on the part of a spouse to join/give consent for recording a statement
under Section 13B(2) of the Act, for the Family Court to pass a decree of divorce based on
mutual consent, as contemplated under Section 13B of the Act, cannot constitute contempt and
the court does not have the jurisdiction to go into the bonafides or reasonableness of the
withdrawal of the consent, the learned Single Judge had examined the provisions of Section
13B of the Act and the judicial precedents cited by both sides and noticed that two learned
Single Judges of this Court in the cases of Shikha Bhatia (supra) and Avneesh Sood (supra),
had opined that a spouse, who gives an undertaking to the court to abide by the consent given
in the First motion for dissolution of marriage under Section 13B(1) of the Act and for moving
a Second motion petition, cannot be permitted to resile from such an undertaking on the basis
of an agreement arrived at between the parties and any attempt to resile therefrom
would amount to a breach of the undertaking accepted by the court and therefore, attract
contempt proceedings.
The decision of the Division Bench of this Court in the case of Dinesh Gulati (supra) was also
brought the notice of the learned Single Judge, wherein recourse to contempt proceedings
against the respondent/wife by the appellant/husband on a grievance that despite a mutual
consent recorded before the Family Court to dissolve their marriage, the wife was not
cooperating with the husband, was questioned and further, suo moto contempt proceedings
initiated by the learned Family Court against the husband for non-compliance of the consent
order and joint statement recorded by the parties earlier thereto, were quashed. The Division
Bench held that such an order of initiating suo moto contempt proceedings neglects the
mutuality aspect provided for under Section 13B of the Act and once the parties were unable
to or did not wish to proceed with the agreement for mutual consent divorce, then the only
recourse was to restore the original divorce petition. Counsels for some of the petitioners had
urged that that the decision in the case of Dinesh Gulati (supra) is per incuriam as it has not
taken note of the judgments of the learned Single Judges in the cases of Shikha Bhatia (supra)
and Avneesh Sood (supra),

Recording the submissions of the learned counsels for the parties, the learned Single Judge
expressed a view that the Division Bench had taken a diametrically different view in the case
of Dinesh Gulati (supra) vis-à-vis that expressed by the two learned Single Judges of this Court
in the cases of Shikha Bhatia (supra) and Rajneesh (supra) and accordingly proceeded to frame
four questions of law extracted above, inviting a decision by a Division Bench. It is in the
aforesaid factual background that these matters have been placed before this Bench.

The relevant provisions of the Hindu Marriage Act, 1955 and the Contempt of Courts Act,
1971 are extracted below:-

―THE HINDU MARRIAGE ACT, 1955 Section 13B Divorce by mutual consent. --

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together, whether
such marriage was solemnised before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for
a period of one year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months
after the said date, if the petition is not withdrawn in the meantime, the court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage
has been solemnised and that the averments in the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the decree.

Respondent’s argument

The Respondent had made the following submissions:-

That mutual consent is a sine qua non for passing a decree of divorce and the said consent must
be valid and subsisting until the time a final decree of divorce is passed. For the said
proposition, reliance was placed on the judgment of the Supreme Court in the case of Sureshta
Devi vs. Om Prakash.

That courts cannot presume consent of a party merely because both the parties are signatories
to the First motion under Section 13B of the Act. Before passing a decree of divorce, the court
remains under an obligation to satisfy itself as to whether the consent given by the parties is a
valid one. For the said proposition, reliance was placed on Smruti Pahariya vs. Sanjay
Paharia , Anil Kumar Jain vs. Maya Jain and Hitesh Bhatnagar vs. Deepa Bhatnagar.

That courts are empowered to enquire into the bona fides of the spouse who withdraws the
consent after filing a petition under Section 13B of the Act. Reference was made to Rajesh R.
Nair vs. Meera Babu reported as AIR 2014 Kerala 44, Family Court Appeal No.61/2010
Prakash Alumal Kalandari vs. Mrs. Jahnavi Prakash Kalandari decided by the Bombay
High Court and Family Court Appeal No.230/2014 in Mrs. Ishita Kunal Sangani vs. Kunal
Sudhir Sangani decided by the Bombay High Court

That violation or breach of an undertaking, which forms a part of the decree of the court,
amounts to contempt of court, irrespective of whether it is open to the decree holder to execute
the decree. In the said context, Rama Narang vs. Ramesh Narang and Anr. was cited to
understand the definition of the term undertaking' and the consequences of a breach thereof
and Ashok Paper Kamgar Union vs. Dharam Godha and Ors. was quoted wherein the
Supreme Court had explained the definition of the terms, „willful‟ and „civil contempt‟. The
legal options available for seeking enforcement of an interim/final decree including an
undertaking given to the court was highlighted by placing reliance on Kanwar Singh Saini vs.
High Court of Delhi.
That a statutory right can be waived by a person subject to the condition that no public interest
is involved therein. For this, reference was made to Krishna Bahadur vs. Purna Theatre and
Ors.

The decisions in the case of Hirabai Bharucha vs. Pirojshah Bharucha and Jyoti vs. Darshan
Nirmal Jain were cited, wherein marriage has been declared a matter of public
policy. Reference was also made to Nagendrappa Natikar vs. Neelamma , to state that the
Supreme Court has held that the right to claim maintenance cannot be waived by a wife, it
being a social welfare legislation.

Lastly, reference was made to the judgment of a Division Bench of this Court in the case
of Angle Infrastructure Pvt. Ltd. vs. Ashok Manchanda & Ors., wherein the mode and
manner of seeking execution of a settlement agreement arrived at through the ADR process,
was exhaustively examined.

Judgment

The answer to Question (A) is yes. The distinguishing feature of Section 13B of the Act, 1955
is that it recognizes the unqualified and unfettered right of a party to unilaterally withdraw the
consent or reconsider/renege from a decision to apply for divorce by mutual consent,
notwithstanding any undertaking given in any legal proceeding or recorded in any
settlement/joint statement, in or outside the court, resulting in a consent order/decree, to
cooperate with the other spouse to file a petition under Section 13B(1) or a second motion
under Section 13 B (2) of the Act, or both. Withdrawal of the consent even at the stage of the
enquiry, as contemplated under Section 13 B (2), is also in exercise of the right available to a
party under the very same provision. In other words, the mutuality of the consent to divorce
should commence from the stage of filing the First motion under Section 13B(1) and it should
continue at the time of moving the Second motion under Section 13B(2) of the Act, till such
time that the court completes the enquiry and a decree of divorce is finally passed. The said
element of mutual consent is a sine qua non for passing a decree of divorce. This being the
legal position, the defaulting party cannot be compelled to file or appear in the petition or
motion or both, to obtain divorce by mutual consent.

(b) Any other view will not only impinge on the jurisdiction of the court which has an
obligation under the Statute to undertake an independent enquiry before passing a decree of
divorce by mutual consent, it will also encroach upon a statutory right vested in a party
under Section 13B(2) of the Act and go against the very spirit of the provision, at the heart of
which lies the right of a party to reflect/revisit and retract from its decision of going ahead for
grant of divorce by mutual consent, during the cooling off period.

(c) At the same time, a defaulting party can be held liable for civil contempt on the ground of
breaching the terms and conditions incorporated in an undertaking given to the court or made
a part of a consent order/decree.

In the event the aggrieved party approaches the court for initiation of contempt proceedings
against the defaulting party for willful/deliberate breach of any of the terms and conditions of
an undertaking/settlement agreement/consent order or a decree and takes a plea that as a
consequence thereof, he/she has been placed in a disadvantageous position or has suffered an
irreversible/grave prejudice, the court in exercise of its inherent powers of contempt,
supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct
restoration of status quo ante in every possible way. Besides directing the defaulting party to
disgorge all the benefits/advantages/privileges that have/would have enured in its favour and
restoring the parties to the position that was before they had arrived at such a
settlement/agreement/undertaking and/or before the consent order/decree was passed in terms
of the settlement arrived at/undertakings recorded, the court has the discretion to punish the
defaulting party for civil contempt, depending on the facts of a given case. Thus, contempt
jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court
under the Act of 1955. The only rider to the above is that no direction can be issued even in
contempt proceedings to compel the defaulting party to give its consent for a decree of divorce
by mutual consent, as it is opposed to the object, policy and intent of Section 13B of the Hindu
Marriage Act.

Analysis

The view that the validity of order of eviction, has nothing to do with a contempt action taken
for any willful breach of solemn undertaking given by a litigant to the Court to vacate the
premises. Reliance placed on the decision rendered with reference to disobedience of orders
passed without jurisdiction, as noticed above, may not be relevant, as the contempt alleged is
not willful disobedience of any order/judgment, but willful breach of an undertaking given to
this Court. We, therefore, hold that irrespective of the fact that an order of eviction is executed
or unexecutable, it will not absolve the respondents from their liability and responsibility to act
in terms of the solemn undertaking given to the Court. Failure to vacate the premises as
undertaken by the tenants - respondent is clearly a willful breach of undertaking given to the
Court which is a civil contempt punishable under the Act.

In the case of Jyoti (supra), the appellant/wife had challenged a decree of dissolution of
marriage granted by the Family Court under Section 13B of the Act on the ground that her
consent had been obtained by deceit and fraud and had argued that even if she had given her
consent, the husband and wife had not separated for a minimum period of one year, which is
an essential ingredient of Section 13B of the Act, due to which dissolution could not have been
granted. In the above factual matrix, the Division Bench of the Gujarat High Court had laid
much stress on the fact that marriage is an institution that ought to be sustained and the society
and courts must make every effort to build broken bridges between spouses

We are of the opinion that such conditions are statutorily provided before a petition for
dissolution for divorce on mutual consent can be presented. It was not even open for the parties
to waive such conditions. It is not even the case of the parties that such conditions were waived
in any case. Any other view would permit the parties to marriage to present a petition for
dissolution of marriage within days of marriage urging the court to accept a consent petition
and dissolve the marriage merely on the ground that the parties have agreed to dissolve such a
marriage. Such a view would be opposed to the very basic philosophy and principle that as far
as possible, the society and the courts make all attempts to ensure that the institution of
marriage sustains and is not lightly broken. It is because of these reasons that invariably
provisions are made in the statute providing for a cooling-off period before which, no petition
for dissolution of marriage can be presented, not only on mutual consent but on any other
grounds as well. It is because of this reason that section 23 of the Hindu Marriage Act as well
as section 9 of the Family Courts Act make detailed provisions enjoining upon the courts to
make all efforts to bring about a settlement and reconciliation between the parties to such
divorce petition."

In the case of Nagendrappa (supra), the question that arose for consideration before the
Supreme Court was whether the compromise entered into by the husband and wife under Order
XXIII Rule 3 CPC, agreeing for a consolidated amount towards permanent alimony and
thereby giving up any future claim for maintenance, once accepted by the court in proceedings
under Section 125 of the [Link], would preclude a wife from claiming maintenance in a suit
filed under Section 18 of the Hindu Adoption and Maintenance Act, 1956. Describing Section
125 of the [Link] as a piece of social legislation that provides for summary and speedy relief to
a wife, who is not in a position to maintain herself and her children, an order under the said
provision was held to be only tentative in nature, being subject to the final determination of all
rights in a civil court. Referring to the provisions of Section 25 of the Contract Act, that
contemplates that any agreement which is opposed to public policy, is unenforceable in a court
of law and such an agreement is void since the object is unlawful, the Supreme Court declared
that any order passed under Section 125 [Link] by compromise or otherwise, cannot foreclose
the remedy available to the wife under Section 18(2) of the Hindu Adoption and Maintenance
Act, 1956.
 WRIT PETITION

1. Phani bhusan Mondal Vs. The State of West Bengal & Ors.
Case No. W.P. 13108 (W) of 2009

Court: The High Court of Calcutta

Bench: Hon’ble Justice Rajasekhar Mantha

Petitioner: Phani Bhusan Mondal

Respondents: The West Bengal College Service Commission & The State of West Bengal

FACTS OF THE CASE:

In the year 2007, an advertisement was issued by the West Bengal College Service Commission
for recruitment to the posts of Lecturers in [Link]. Training Colleges. One of the qualifications
for the posts was that the candidate was required to have a Post‐Graduation in a subject as also
Master's degree in Education. The said process of recruitment could not be finalized. However,
in the year 2008, the Commission issued another advertisement where under even persons with
[Link]. degree and masters in any subject were entitled to apply for the same post and the process
of recruitment under the two advertisements was clubbed.

The petitioner who is in the S.C Category applied under the second advertisement since he only
had bachelor of education degree and a master in other subject. One of the terms contained in
the advertisement that a selected candidate would have to complete his Master's degree in
Education within a period of two years of the recruitment.

The process of selection involved a total of marks allotted on the basis of academic
qualifications and marks obtained in interview/viva‐voce.

A final list of eight empanelled candidates for Calcutta University category was prepared and
published in the Scheduled Castes category and one person in the O.B.C. category. The
petitioner did not feature in such panel.

The Petitioner has complained to the authorities through the SC and ST Commission and
received a reply to the effect that the process of recruitment was made after screening of
candidates based on the method subject in their respective [Link]. curriculum.
FACT IN ISSUE:

The writ petitioner would advance a two‐fold argument before this Court. Firstly, that the
vacancy position was about 25 in the reserved category of which 14 were for Scheduled Castes
candidates. The petitioner himself is a Scheduled Caste candidate.

The Commission, according to the petitioner, acted illegally in empanelling only eight persons
as against 14 vacancies. He would next argue that the selection and categorization of candidates
based on the method subject in the curriculum and the [Link]. courses undergone by them was
alien to the advertisement and hence was illegal and arbitrary.

PETITIONER'S ARGUMENT
The petitioner relied on Supreme Court in the case of (R.S. Mittal vs. Union of India) reported
in (1955) 2 SCC 230 particularly in paragraph 10 thereof.

"The Tribunal dismissed the application by the impugned judgement on the following
reasoning:

(a) The selection panel was merely a list of persons found suitable and does not clothe the
applicants with any right of appointment. The recommendations of the Selection Board were
directory and not mandatory and were not therefore enforceable by issue of a writ of mandamus
by the Court.

(b) The letter of Ministry of Home Affairs dated 8‐2‐1982 which extends the life of panel till
exhausted is not relevant in the present case. In the circumstances the life of the panel in this
case cannot go beyond 18 months and as such expired in July 1989. It is no doubt correct that
a person on the select panel has no vested right to be appointed to the post for which he has
been selected. He has a right to be considered for appointment. But at the same time, the
appointing authority cannot ignore the select panel or decline to make the appointment on its
whims. When a person has been selected by the Selection Board and there is a vacancy which
can be offered to him, keeping in view his merit position, then, ordinarily, there is no
justification to ignore him for appointment. There has to be a justifiable reason to decline to
appoint a person who is on the select panel. In the present case, there has been a mere inaction
on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was
given as to why the appointments were not offered to the candidates expeditiously and in
accordance with law. The appointment should have been offered to Mr. Murgad within a
reasonable time of availability of the vacancy and thereafter to the next candidate. The Central
Government's approach in this case was wholly unjustified."
Supreme Court in the case of (East Coast Railway and Anr. Vs. Mahadev Appa Rao and Ors.)
reported in (2010) 7 SCC 678. "It is evident from the above that while no candidate acquires
an indefeasible right to a post merely because he has appeared in the examination or even found
a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an
appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by
the merit list prepared at the end of the selection process. The validity of the State's not to make
an appointment is thus a matter which is not beyond judicial review before a competent writ
court. if any such decision is indeed found to be arbitrary, appropriate directions can be issued
in the matter.

RESPONDENT'S ARGUMENTS
That the petitioner at all material times knew that methodology was an integral part of the [Link].
course undertaken by a candidate. There are admittedly three compulsory papers in the [Link].
course and one subject paper and two method papers apart from four practical papers. It is
further submitted that a candidate having studied and qualified in a particular method paper
while pursuing the [Link]. degree is deemed capable of teaching only such method/subject.

It is in furtherance of this knowledge that the petitioner in his first application against the
column subject had stated [Link]. and in the form to be filled up before the interview, had stated
Bengali as his method/subject.

In substance the Commission would argue that the petitioner at all material times aware of the
application of selection and/or categorization of Lecturers based on method system which
method was the one in which they were trained and had obtained the [Link]. degree. It is,
therefore, argued by the Commission that the petitioner having fully known of the method of
selection, cannot turn around subsequently after failing to qualify, or being empanelled,
question as to why the method subject based process of categorization and/or selection was
adopted by the Commission.

Reliance is placed by the Commission on the decision of the Supreme Court in the case of
(Madras Institute of Development Studies vs. K. Sivasubrananiyan) reported in (2016)
without raising any objection to the alleged variations in the contents of the advertisement and
the Rules, submitted his application and participated in the selection process by appearing
before the Committee of Experts. It was only after he was not selected for appointment that he
turned around and challenged the very selection process. Curiously enough, in the writ petition
the only relief sought for is to quash the order of appointment without seeking any relief as
regards his candidature and entitlement to the said post.

In Manish Kumar Shahi v. State of Bihar1, this Court reiterated the principle laid down in the
earlier judgments and observed: (SCC p. 584, para 16) "16. We also agree with the High Court
that after having taken part in the process of selection knowing fully well that more than 19%
marks have been earmarked for viva voce test, the petitioner is not (2010) 12 SCC 576: (2011)
SCC (L&S) 256] entitled to challenge the criteria or process of selection. Surely, if the
petitionerʹs name had appeared in the merit list, he would not have even dreamed of challenging
the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the
Constitution of India only after he found that his name does not figure in the merit list prepared
by the Commission. This conduct of the petitioner clearly disentitles him from questioning the
selection and the High Court did not commit any error by refusing to entertain the writ petition.

The Commission also placed reliance on the decision in the case of Chandigarh Admn. Vs.
Usha Kheterpalwaie. It is now well settled that it is for the rule‐making authority or the
appointing authority to prescribe the mode of selection and minimum qualification for any
recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon
the power of the authority concerned so long as the qualifications prescribed by the employer
is reasonably relevant and has a rational nexus with the functions and duties attached to the
post and are not violative of any provision of the Constitution, statute and rules. (See J.
RangaSwamy v. Govt. of A.P. (1990)

JUDGMENT IN A GLANCE

In so far as the first point that is raised, this Court is of the view that merely because 24
vacancies have been announced, the State is not bound to fill up such vacancies. The
Commission is only required to recommend 14 candidates under S.C category and may
recommend a for lesser number of persons if it does not find suitable persons based on the
criteria to be applied. It is held that the Commission as well as the State has discretion to
empanel and appoint lesser number of candidates if suitable number of candidates are not found
against all posts advertised.

The second argument of the petitioner is that the method subject in the [Link]. degree applied as
criteria of selection not having been stipulated in the advertisement cannot be imported by the
Commission and the selection process is invalid needs to be addressed.
The petitioner, therefore, cannot turn around and deny knowledge of the method/subject in the
[Link]. course as the criteria for selection. No special mention needs to be made in the
advertisement to this effect, although the Commission and the State could have been better
placed to have stipulated more clearly advertisement to this effect.

The propositions in the decision cited by Mr. Sanyal are apt but cannot be applied in the instant
case.

The decisions cited on the part of the Commission being Madras Institute of Development
Studies case (supra) and Chandigarh Admn case (supra) clearly has application in the facts of
the case. This Court does not find any arbitrariness or impropriety in the selection process on
the part of the Commission or the State in this regard.
For the reasons stated hereinabove, the writ petition must fail and is hereby dismissed.

ANALYSIS

The Court also finds it rather curious to note that the petitioner has mentioned [Link]. against
the column 'subject' in his initial application. This Court's mind is not free from doubt that the
same has been made deliberately to leave a vagueness to enable the petitioner undue leverage
in the selection process.
 2. Md. Rahim Sk. Vs. The State of West Bengal & Ors.
Case No. W.P. 33293 (W) of 2014

Court: The High Court of Calcutta

Bench: Hon’ble Justice Debangsu Basak

Petitioner: Md. Rahim Sk.

Respondents: The State of West Bengal

FACTS OF THE CASE:

The writ petitioner is an Assistant Teacher in a Madrasah. He has sought higher pay scale from
the authorities. His request for higher pay scale has been denied by the impugned Memo dated
December 20, 2013. He seeks quashing of the impugned Memo and a higher pay scale, in this
petition.

It is contended on behalf of the writ petitioner that, the writ petitioner had applied to the
Managing Committee of the Madrasah on September 2, 2008 for prosecuting higher studies.
The Managing Committee of the Madrasah had taken a resolution on September 13, 2008 and
had given him permission to prosecute higher studies. After obtaining such permission the writ
petitioner had prosecuted higher studies and had obtained a Master Degree. The Madrasah
stood upgraded as Secondary Madrasah and subsequently as a Higher Secondary Madrasah.
Due to such upgradation the writ petitioner was asked to take History classes of Class XI and
XII. The writ petitioner is teaching History for Classes XI and XII since July 2011.

FACT IN ISSUE:

The writ petitioner is an Assistant Teacher of a Madrasah. The concerned Madrasah is presently
a Higher Secondary Madrasah subsequent to its upgradation. The writ petitioner had applied
to the Managing Committee of the concerned Madrasah for prosecuting higher studies. The
Managing Committee of the concerned Madrasah had given the writ petitioner permission to
do so by a resolution dated March 3, 2012. The records made available do not suggest that the
school authorities had forwarded the request for permission to the District Inspector of Schools.

The writ petitioner had by a writing dated April 16, 2011 requested the Additional District
Inspector of Schools of the concerned council to sanction higher pay scale. The concerned
Madrasah by a writing dated May 7, 2012 had forwarded the necessary papers to the Additional
District Inspector of Schools for higher pay scale of the writ petitioner. The Additional District
Inspector of Schools not informing the result of such request, the writ petitioner through his
Advocate had applied under the Right to Information Act, 2005 by an application dated
November 22, 2013. In response thereto by the impugned Memo dated December 20, 2013 the
Additional District Inspector of Schools has rejected the request of the writ petitioner for higher
pay scale citing the Government Order bearing No. 593 S.E. (B) dated November 27, 2007.

PETITIONER'S ARGUMENT

On behalf of the State it is contended that, the writ petitioner did not obtain prior permission
of the concerned District Inspector of Schools through the Managing Committee of the school
for obtaining such higher qualification. In view of the West Bengal School (Control of
Expenditure) Act, 2005 and the Government Order bearing No. 593 S.E. (B) dated November
27, 2007 the writ petitioner not having obtained such prior permission, he is not entitled to
higher pay scale.

RESPONDENT'S ARGUMENTS

On behalf of the State it is contended that, the writ petitioner did not obtain prior permission
of the concerned District Inspector of Schools through the Managing Committee of the school
for obtaining such higher qualification. In view of the West Bengal School (Control of
Expenditure) Act, 2005 and the Government Order bearing No. 593 S.E. (B) dated November
27, 2007 the writ petitioner not having obtained such prior permission, he is not entitled to
higher pay scale.

The writ petitioner is an Assistant Teacher of a Madrasah. The concerned Madrasah is presently
a Higher Secondary Madrasah subsequent to its upgradation. The writ petitioner had applied
to the Managing Committee of the concerned Madrasah for prosecuting higher studies. The
Managing Committee of the concerned Madrasah had given the writ petitioner permission to
do so by a resolution dated March 3, 2012. The records made available do not suggest that the
school authorities had forwarded the request for permission to the District Inspector of Schools.

Section 14(3) of the Act of 2005 allows every teacher of a school, if appointed in the Honours
Graduate or Post Graduate teacher category, to be entitled to draw pay of Post Graduate teacher
category upon acquiring Post Graduate degree in the manner as may be specified by order.
Therefore, the Post Graduate degree has to be obtained in the manner as specified by a
Government order for a teacher to be entitled to draw pay of Post Graduate teacher category.
The Government of West Bengal has issued a Government Order bearing No. 593-SE (B) dated
November 27, 2007 specifying the manner in which a teacher would be entitled to claim
additional increment and higher scale of pay upon acquiring Post Graduate/ or any Higher
Diploma/Degree under Section 14(3) of the Act of 2005.

JUDGMENT IN A GLANCE

Section 14(3) of the Act of 2005 allows every teacher of a school, if appointed in the Honours
Graduate or Post Graduate teacher category, to be entitled to draw pay of Post Graduate teacher
category upon acquiring Post Graduate degree in the manner as may be specified by order.
Therefore, the Post Graduate degree has to be obtained in the manner as specified by a
Government order for a teacher to be entitled to draw pay of Post Graduate teacher category.

1595 SE (S) dated 26-12-2005 also stands modified." A teacher governed by the Government
Order is required to take prior permission from the Managing Committee to enrol himself and
to appear for any examination for enhancement of educational qualification. The Managing
Committee is required to take a decision in its meeting next to receipt of the application from
the teacher and to convey its decision to the teacher as well as to the District Inspector of
Schools of the concerned district.

The Government Order dated November 27, 2007 allows a teacher of less than 50 years of age
to apply for permission to obtain higher qualification. A teacher fulfilling the other criteria laid
down in the Government Order dated November 27, 2007 can apply for permission to obtain
higher qualification with or without financial benefit accruing to him. In the event, the teacher
seeks to acquire higher qualification in order to claim additional increment/higher scale of pay
for obtaining such higher qualification, he is required to seek prior permission of the concerned
District Inspector of Schools (S.E.) specifying therein such intention of the teacher.

The Government Order has specified that a teacher requires "prior permission" of the District
Inspector of Schools to acquire the higher qualification in order to be entitled to higher pay
scale.
ANALYSIS
In the present case, the writ petitioner had applied to the Managing Committee of the Madrasah
after the coming into force the Act of 2005. The three authorities cited above do not apply to
the fact of this case.

In Akhtar Hossain Chowdhury (supra), the Managing Committee of the concerned school had
forwarded the application of teacher seeking permission to the District Inspector of Schools
who did not refuse the prior permission to the teacher to undergo the higher studies. In such
circumstances, the teacher was allowed higher scale of pay. Akhtar Hossain
Chowdhury (supra) is not applicable as the Managing Committee herein did not forward the
application to the District Inspector of Schools.

In the present case, I do not find the writ petitioner to have acquired the higher qualification in
terms of the Government Order dated November 27, 2007 thereby entitling the writ petitioner
to a higher pay scale. The challenge to be impugned Memo dated December 20, 2013 therefore
fails.
 CONCLUSION
As I have seen from my visit to the City Civil & Sessions Court one possible fact that
may discourage the parties from claiming is the giving too much opportunity to the other
side even after they have not turned up since the cases are established, and the matters
goes uptill years, causing losses to the party seeking redressal. Cases in the City Civil &
Sessions Court can be very comprehensible to lay persons. In fact, all measures were taken
up before coming onto the conclusion by the judge, documents were examined properly,
also proper summons and notices were served, as to no result from the defendant such Ex-
parte decree was passed.

In reference to legal skills, all lawyers were able to present these. Legal skills refer to
effective research, communication and organization skills. All parties seemed to be fully
prepared. Another important observation, was the role of the lawyers and solicitors. The role
of the lawyer was, as expected to present the cases to the courtroom and the solicitors’ role
was to do the main body of the work. Although solicitors have the right to speak in the court
room, there were a few instances in which the lawyer would refer to the solicitor asking if
all the points had been covered or if there were further points that they felt relevant to
discuss. But the factor that surprised me the most from my visit to the courtroom was, the
minimal use of precedent. The Indian legal system is one of common law, which suggests
that much emphasis is placed on the precedents and case law.
 Bibliography
1. [Link]
2. [Link]
3. Judicial Process in Civil Law – Rachi Gupta
4. Problems and Solutions on Civil Law – Kishore Prasad
5. Supreme Court on Civil Law – Mulla
6. Criminal Law – P.S.A. Pillai
7. Principal of Criminal Law – [Link]
8. Text Book on Arbitration & Conciliation – Madhusudan Saharay
9. Law of Marriage and Divorce: A Comprehensive Treaties on Matrimonial laws of All
Indian Communities – Paras Diwan