Vol-III Part-1

January, 2008

IMPORTANT CASE LAWS

Compiled by

Tamil Nadu State Judicial Academy Chennai 28

SUPREME COURT CITATIONS

(2008) 1 MLJ 45 (SC) Ram Prakash Gupta and Others Vs. Rajiv Kumar Gupta and Others (A) ***** (B) Code of Civil Procedure (5 of 1908), Order 7, Rule 11 (d) Rejection of plaint, under Order 7, Rule 12 Mandatory requirements, under Limitation Act (36 of 1963), Article 59 Application for rejection of plaint on ground limitation, allowed Respondents' further filing 2 suits, obtaining decree fraudulently Plaintiff handicapped person On coming to know of said decree, taking steps at earliest, filing suit for declaration As per Article 59, Limitation Act, suit to be filed within 3 years of date of knowledge Knowledge mentioned in plaint not incomplete or inadequate Both lower Courts failed to advert to relevant averments in plaint Order rejecting plaint set aside. RATIONES DECIDENDI I. Before passing an order in an application for rejection of plaint under Order 7, Rule 11 (d), Code of Civil Procedure, it is but proper to verify the entire plaint averments. II. The plea of limitation taken after cross examination of the party cannot form the basis for a contention for rejection of plaint. (2008) 1 MLJ 193 (SC) Asokan Vs. Lakshmikutty and Others Transfer of Property Act (4 of 1882), Sections 122 and 123 Indian Evidence Act (1 of 1872), Sections 91 and 92 Deed of gift Suit for declaration filed by donee/appellant Trial Court decreed said suit opining that valid gift could not have been rescinded by mere fact that donors feeling towards donee underwent a change However, it was reversed by First Appellate Court and High Court opining that deeds in 1

question not accepted by donee/appellant as there had been no overt act of possession on part of appellant Appeal Deeds of gift not onerous in nature Factum of handing over of possession of properties which were subject matter of gift, stated in deeds of gift themselves Averment made in deed of gift in regard to handing over of possession is sufficient proof of acceptance thereof by donee It is not necessary to prove any overt act of possession on part of appellant since express acceptance is not necessary Judgments of High Court and as also First Appellate Court set aside and that of trial Court restored Appeal allowed. RATIONES DECIDENDI I. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. Even a silence may sometime indicate acceptance when the donee was aware of the recitals contained in deed of gift and it is not necessary to prove any overt act in respect thereof since an express acceptance is not necessary for completing the transaction of gift. II. When the deed of gift catergorically state that the propety had been handed over to the donee and he had accepted the same, it is sufficient proof of acceptance thereof by the donee. Even assuming that the legal presumption raised in a case of this nature is a rebuttable one, the onus should be on the donor and not on the donee. III. Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for recission of a valid gift. (2008) 1 MLJ 155 (SC) Divisional Manager, Aravali Golf Club and Another Vs.Chander Hass and Another (A) ***** (B) Seperation of Powers Limits of powers of judiciary There is broad separation of powers under Constitution Each organ of State must not encroach into each other's domains In name of judicial activism Judges could not cross there limits and try to take over functions which belong to another organ of State Adjudication must be done within system of historically validated restraints and 2

conscious minimization of Judges' preferences Judges could not create law and seek to enforce it. (c) Judicial Restraint Only Judiciary has power to declare limits of jurisdiction of all three organs of State Such power should be exercised by judiciary with utmost self-restraint Judicial restraint tends to protect independence of judiciary Judiciary should confine itself to its proper sphere realizing that in democracy many matters and controversies best resolved in non-judicial setting. RATIO DECIDENDI The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization.

(2008) 1 MLJ 144 (SC) Prabha Arora and Another Vs. Brij Mohini Anand and Others U.P. Urban Buildings ( Regulation of Letting Rent and Eviction) Act, 1972, Section 21 (1) (a) Eviction petition Subsequent events Changed circumstances during pendency of the petition Must be taken into consideration Landlord filing eviction petition for running tuition classes Petition rejected During pendency of appeal trust was created over the property involved in the eviction petition Need mentioned in the petition disappears Eviction petition has to be rejected. RATIO DECIDENDI Where in an eviction petition possession is sought for by the landlord for personal requirements, the said requirement must not only exist on the date of the filing of the petition but must also subsist till the final decree for an order of eviction is made. If in the mean time events crop up which would show that the landlord's requirement no longer subsists then the action must fail.

 (2008) 1 (Crl) 133 (SC) T. Vengama Naidu Vs. T. Doraswamy Naidu and Others Code of Criminal Procedure, 1973 (2 of 1974), Section 482 Petition to quash proceedings F.I.R. alleging offences under Sections 464, 423 and 420 Indian Penal Code, (45 of 1860) Power of attorney to sell land Revocation Agent selling property with knowledge of revocation to own daughter -Intention to cause loss and to cheat principal complaint under investigation by police Petition to quash to be dismissed. The Complainant in his F.I.R. alleged that he had revoked the power of attorney given to the first respondent and with that knowledge he went on dishonestly to execute the sale deed in favour his own daughter the second respondent, with an intention to cause loss to the complainant and to cheat him. Offences punishable under Sections 464, 423, and 420 I.P.C. and the daughter also knew that the first respondent had no right to execute the sale. The complaint was under investigation. But the respondent filed the petition to quash the proceedings. The High Court quashed the proceedings. The High Court quashed the proceedings on the basis that the matter raised a civil dispute. The complainant appealed. RATIO DECIDENDI It is settled law that an F.I.R. and the consequent investigation cannot be quashed unless there is no offence spelt out from the same on the basis of the allegations alleged. There is no question of considering the merits of the allegations contained in the F.I.R. at that stage or testing the teracity of the allegations.

 2008 (1) CTC 74 Mohannakumaran Nair Vs. Vijayakumaran Nair Code of Civil Procedure, 1908 ( 5 of 1908) , Section 20 Parties were not residing within local limits of jurisdiction of Court when transaction taken place Plaintiff was residing in Saudi Arabia Material date for purpose of invoking Section 20 of Code of Civil Procedure is one of institution of Suit and not the subsequent fact that Defendant started residing in Kerala permanently and said fact would not confer territorial jurisdiction. 2008 (1) CTC 161 Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and others Code of Civil Procedure, 1908 (5 of 1908), Section 152 Section 152 empowers Court to correct its own error in judgment, decree or order from any accidental slip or omission It is general inherent power of Court Court has to see that records are true and present correct state of affairs Court cannot, exercising powers under Section 152, review its judgments Error in decree may be corrected both under provisions of Sections 151 and 152 Accidental slip or omission can be on part of Court or on part of its ministerial officers or traceable to conduct of parties themselves Error in description of property in Suit which had been decreed could be corrected and decree be amended under provisions of Section 152 particularly when statements contained in body of plaint sufficiently described suit lands Amendment order by Trial Court and upheld by High Court confirmed. 2008 (1) CTC 173 Mahabir Singh Vs. Subhash and others Code of Civil Procedure, 1908 ( 5 of 1908), Order 9, Rule 13 Limitation Act, 1963 (36 of 1963), Section 3 & Article 123 Defendant seeking to set aside ex-parte decree to establish that either summons was not served on him or he had sufficient cause 5

for remaining absent on date fixed for hearing Suit ex-parte When defendant shown to have knowledge of decree prior to filing of Application for setting aside same, period of limitation would be reckoned from that day and Application filed after one and a half years after he came to know about passing of ex-parte decree is barred by limitation No Court can entertain any Application or Suit if same has been filed after expiry of period of limitation.

HIGH COURT CITATIONS

(2008) 1 MLJ 122 Manickavasagam Vs. Ammayappa Pillai and Another (A) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 Restoration petition dismissed On ground application for condonation of delay not filed therewith When petition presented, no objection by Registry regarding limitation Registry numbering restoration petition Fault of Registry, not of appellant Progmatic approach necessary when dealing with restoration petition filed after delay Should not be dismissed on mere technicalities. (B) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 Restoration petition dismissed on ground counsel for appellant reported no instructions - Ex-parte order Held, counsel to inform client by registered post of his inability to appeal Only on receipt of postal acknowledgement, counsel to report no instructions to Court. RATIONES DECIDENDI I. Restoration petitions filed after delay should be dealt with a pragmatic approach. Such petitions should not be dismissed on ground of mere technicalities. II. It is the counsel's duty to inform his client by registered post, of his inability to appear; only on receipt of postal acknowledgement thereto can he report no instructions to the Court.

 (2008) 1 MLJ 186 Balasubramanian Vs. Shanthi (A) Pondicherry Buildings ( Lease and Rent Control) Act (1969), Sections 10 (2) (i) and 10 (3) (a) (iii) Eviction Application for eviction of respondent- tenant on ground of personal use and occupation Impugned order dismissing same Revision Petitioner physically handicapped and he was also carrying on business in rented premises License obtained by landlord to carry on business in premises in question Requirement of premises in question for personal use and occupation justified As such, impugned order set aside Eviction order passed Revision petition allowed. RATIO DECIDENDI Once the license has been issued by the Corporation to the landlord to carry on his business in the premises in question, there cannot be any legal impediment for ordering eviction on the ground of personal use and occupation particularly when the landlord is a physically handicapped and he is also carrying on business in the rented premises. 2008 (1) CTC 295 Vijayan @ Jayapandian and others Vs. State, rep by Inspector of Police, Chidambaram Town Police Station, Chidambaram, Cuddalore District Evidence Act, 1872 (1 of 1872), Section 30 Confession of co-accused Value of evidence of Confession can be considered against other accused only if such co-accused has been tried jointly for same offence along with other accused Decision of Apex Court in Suresh Budharmal Kalani Vs. State of Maharashtra, AIR 1998 SC 3258 relied on. 2008 (1) CTC 308 Vincent Lourdhenathan Dominique and another Vs. Josephine Syla Dominique Registration Act, 1908 (16 of 1908), Section 17 Registration of family arrangement and guidelines regarding admissibility of unregistered family arrangement Family arrangement that purports to create, declare, assign, limit and extinguish right, 7

title and interest over immovable properties and therefore document is requited to be properly stamped and duly registered Family arrangement which records at later point of time of partition of properties that had already taken place and given effect to need not be registered contents of documents alone should be looked into and nomenclature is not guiding aspect to make such determination Family arrangement which allotted properties and did not record earlier partition required registration and unregistered document cannot be admitted in evidence Tests laid down in A.C. Lakshmipathy Vs. A.M. Chakrapani Reddiar, 2001 (1) CTC 112 followed.

(2008) 1 MLJ 349 Sheik Allaudin and Others Vs. Annibal Thamilarasi Jesintha Code of Civil Procedure ( 5 of 1908), Section 50 Legal representatives A person living with the tenant or having continuous association with him as a member of tenant's family until his death can be treated as his legal representative for proper conduct of the proceeding They can be impleaded as necessary parties in execution proceedings for eviction Decision in Balasubramanya Gupta Vs. Saraswathiammal and Others 2005-2-L.W.450 followed Revision dismissed. RATIO DECIDENDI Person having continuous association with the deceased tenant as a member of his family can be treated as his legal representative for the purpose of impleading them in eviction proceedings. (2008) 1 MLJ 354 Sakunthala (Ms.) Vs. Anandarajan and Another Code of Civil Procedure ( 5 of 1908), Order 3 Rule 2 Authorised agent cannot be permitted to give evidence where the evidence is based on personal knowledge of the principal Power agent appointed in the year 2003 cannot be expected to know the normal course of business which happened in 1994.

RATIO DECIDENDI A power of attorney can appear as witness only in his personal capacity and not as a witness on behalf of the principal, where evidence is based on the principal's personal knowledge. (2008) 1 MLJ (Crl) 101 Bharat Kashavlal Patel @ Arvind Gohel Vs. State, rep. by Superintendent of Police CBI, Chennai Code of Criminal Procedure, 1973 (2 of 1974), Section 311 Pending trial petition filed to receive additional documents Not filed along with final report Petition allowed by trial Court Unreasoned order Revision filed Scope and object of Section 311 Discussed Failure to give reasons in the order, deprecated Right to know the reasons is indispensable part of justice Impugned order set aside Matter remanded to be decided afresh Petition allowed. RATIO DECIDENDI Order passed by the Court must be supported by reasons. Failure to give reasons amounts to denial of justice. Right to know the reason for rejection of petition is an indispensable part of justice. (2008) 1 MLJ (Crl) 26 Manickam @ Poonga Manickam and Others Vs. State rep by Deputy Commissioner of Police, CBCID Metro Wing, Chennai (A) ***** (B) Indian Evidence Act (1 of 1872), Section 133 Criminal Trial Accomplice evidence Reliability Evidentiary value of An accomplice is undoubtedly a competent witness under Evidence Act Appreciation of approver's evidence has to satisfy a 'double test' Evidence must show reliability Such evidence must receive sufficient corroboration Which connects or tends to connect an Accused with crime. (C) ***** 9

RATIONES DECIDENDI I. An evidence of an accomplice need not necessarily be rejected, that the evidence requires corroboration in material particulars as well as the corroboration of the evidence connecting or tend to connect the accused with the crime, that such accomplice witness is reliable. II. ***** (2008) 1 MLJ (Crl) 50 Seetharaman and Others Vs. State rep. by Inspector of Police, Ariyalur Police Station (A) ***** (B) ***** (c) Indian Evidence Act (1 of 1872), Section 25 & 27 Confession before police, in the presence of VAO Leading to recovery Materials on record reveal the arrest of the accused one day prior to the date of the arrest shown by the prosecution Identifying the place of burial of the body of the deceased Recovery of properties of the deceased not identified No probative value with arrest and recovery Conviction set aside.

RATIONES DECIDENDI

I. To rely upon the Test Identification Parade, the persons required to identify an accused should have had no opportunity of seeing him before the commission of the crime and before identification. II. Once the fact has been discovered, Section 27 of the Evidence Act 1872 cannot again be made use of to rediscover the discovered fact. It would be a total misuse, even abuse of the provisions of Section 27. (2008) 1 MLJ (Crl) 276 Dr. R. Krishnamurthy, Editor and Partner, Dinamalar Tamil Daily Newspaper, Chennai-2 and Another Vs. Sun TV Network Limited, rep. by its Authorized Person, L. Jotheeswaran, Teynampet,Ch-18. Indian Penal Code (45 of 1860), Sections 499 and 500 Code of Criminal Procedure, 1973 (2 of 1974), Section 482 Complaint for defamation against Editor and

10 Publisher of the daily news paper- Quash petition filed Complainant is a company Whether the company has reputation apart from its property or trade Language of Explanation 2 of Section 499 I.P.C. - Wide interpretation permissible Company is the aggrieved person Juristic entry Complaint filed by a person's authorised representative maintainable Merits of the allegations in the complaint cannot be adjudicated in the quash proceedings Petition dismissed. RATIO DECIDENDI Complaint for defamation is maintainable at the instance of a company, though a judicial entity, represented by its authorised representative for the loss of property and trade, in view of explanation(2) to Section 499 Indian Penal Code,1860. (2008) 1 MLJ (Crl) 193 Vijayan @ Jayapandian and Others Vs. State rep. by Inspector of Police, Chidambaram Town Police Station, Chidambaram, Cuddalore District (A) ***** (B) Indian Evidence Act (1 of 1872), Section 30 Confession of the absconding accused Inadmissible against a co-accused unless they are jointly tried Decision in Suresh Budharmal Kalani Vs. State of Maharashtra AIR 1998 SC 3258 followed Death sentence set aside Reference answered in favour of the accused Appeals allowed. RATIO DECIDENDI The statement under Section 162 and 164 of the Code of Criminal Procedure, 1973 can be used either to corroborate or to contradict the earlier version. Confession of a co-accused can be used against other accused only if they are tried jointly for the same offence. (2008) 1 MLJ (Crl) 255 A. Ganesan Vs. Dr. S. Mahalingam Code of Criminal Procedure 1973 (2 of 1974), Section 378 (3) Limitation Act (36 of 1963), Section 5 Dishonour of cheque Appeal against acquittal filed without special leave petition returned and represented with special leave petition Leave granted Appeal admitted Accused filing a petition to recall the order granting

11 leave, allowed because thespecial leave petition filed after the period of limitation for filing the appeal Liberty given Petition to condone the delay of 15 days Calculation of delay disputed Sufficient cause shown Limitation Act should be construed liberally Substantial justice is to be done Delay condoned Petition allowed. RATIO DECIDENDI Limitation Act should be liberally construed to ensure that substantial justice is done and length of delay is not relevant in the absence of any inaction or lack of bonafide. (2008) 1 MLJ (Crl) 251 Irulayee and Others Vs. State rep. by sub-Inspector of Police, All Women Police Station, Virudhunagar District Indian Penal Code (45 of 1860), Sections 294(b) and 452 F.I.R. filed only after seven days of occurrence The petitioners entered into the house of de-facto complainant and abused her Even according to prosecution the occurrence taken place inside the house of the defacto complainant Hence Section 294(b) of I.P.C. not attracted Criminal tresspass alone cannot be maintained Proceedings before Judicial Magistrate quashed Petition allowed. RATIO RECIDENDI In order to bring the offence under Section 294(b) of Indian Penal Code, 1860 the occurrence must have taken place in a public place or near public place. When the charge under Section 294 (b) is not made out then the offence of criminal tresspass alone cannot be maintained, in the absence of any of the offence along with trespass to make out as a criminal house-trespass. (2008) 1 MLJ (Crl) 271 Saravannan Vs. State rep. by Inspector of Police, Uthangaral Police Station , Dharmapuri District Indian Penal Code (45 of 1860), Section 304 (ii) Conviction under Section 304 (ii) Indian Penal Code Appeal filed by appellant P1 to P3 Ocular 12

witnesses Turned hostile P.W.4 and P.W.9 inconsistent statements No credit can be given to the evidences given by P.W. 4 and P.W. 9 Judgment set aside Accused acquitted. RATIO DECIDENDI When there is no valid reasoning given for non-examination of the investigation officer, the seizure of material objects cannot be taken to be proved and the mere fact that the material objects were seized from the place of occurrence would not advance argument any further so as to warrant conviction under Section 304 (ii) Indian Penal Code, 1860. 2008 (1) CTC 369 S. Thirugnanasambandam Vs. Kaliyaperumal Chettiar Code of Civil Procedure, 1908 (5 or 1908), Order 8, Rule 6-A to 6-G When Counter-claim has to be filed? - Counter-claim by the Defendant can be entertained at any stage to avoid multiplicity of judicial proceedings Discretion is given to Court to allow filing of additional written statement or counter-claim Court has to only consider whether it is necessary for determining real question in controversy between parties and that claim is not hit by law of limitation or exceeding pecuniary jurisdiction of the Court. 2008 (1) CTC 50 The New India Assurance Co. Ltd., Catholic Centre, 913, Main Road, Koilpatti Vs. P. Chelladurai and Others Motor Vehicles Act, 1988 (59 of 1988), Section 149 (2) (a) (ii) and (3) Violation of Policy Condition Liability of Insurance Company Driver of Vehicle was a minor boy of 15 years Minority admitted before Criminal Court and fine paid Insurance Company need not prove that owner of vehicle consciously violated terms of Policy by allowing a minor without licence to drive vehicle when driver was a minor question of Insurance Company proving that owner of vehicle consciously violated policy condition would not arise Insurance Company exonerated from liability Claimant already withdrew 50% compensation deposited by Insurance Company 13

Claimant to recover balance from insured Insurance Company also permitted to recover 50% withdrawn by claimant from insured. 2008 (1) CTC 97 J. Naval Kishore Vs. D.Swarna Bhadran Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule 27 - Receipt of Additional Documents at Appellate Stage Certified copy of family arrangement sought to be filed in Appeal as only photo copy had been filed during trial and person who signed such document did not examine himself as witness in trial and original though available during trial was not filed Glaring discrepancies found in two documents Application for additional documents rejected. 2008 (1) CTC 97 J. Naval Kishore Vs. D.Swarna Bhadran Indian Evidence Act, 1872 (1 of 1872), Section 67 Secondary evidence could be looked into only when non-production of original is satisfactorily explained Possibility of interpolation in photo copy cannot be ruled out Photo copy of family arrangement could not be entertained as no reason for not filing Original family arrangement was given and original document was very much in existence.

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