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26/09/2022

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13/11/2012

দীপাবলীর প্রীতি ও সুভেছা, ভালো থেকো সবাই!
রাজেশ ও শর্মিষ্ঠা

12/11/2012

04/11/2012

SC: LIMITATION STARTS FROM DATE OF ORDER, NOT FROM DATE OF ORDER IN REVIEW
Different situations may arise in relation to review petitions filed before a Court or Tribunal. One of the situations could be where the review application is allowed, the decree or order passed by the Court or Tribunal is vacated and the appeal/proceedings in which the same is made are re-heard and a fresh decree or order passed in the same. It is manifest that in such a situation the subsequent decree alone is appealable not because it is an order in review but because it is a decree that is passed in a proceeding after the earlier decree passed in the very same proceedings has been vacated by the Court hearing the review petition. The second situation that one can conceive of is where a Court or Tribunal makes an order in a review petition by which the review petition is allowed and the decree/order under review reversed or modified. Such an order shall then be a composite order whereby the Court not only vacates the earlier order but simultaneous with such vacation of the earlier decree or order or modifies the one made earlier. The decree so vacated reversed or modified is then the decree that is effective for purposes of a further appeal, if maintainable under law. The third situation is where the revision petition is filed before the Tribunal but the Tribunal refuses to interfere with the decree or order earlier made, it simply dismisses the revision. The decree in such a case suffers neither any reversal nor an alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition.

Reference : SC. M/s DSR Steel (P) Ltd. v. State of Rajasthan & Ors., civil appeal no. 3814 with 4393 and 4396 of 2007.

04/11/2012

SC: IN THE ABSENCE OF ANY CAUSE OF ACTION, SUIT CANNOT PROCEED
The operative part of the judgement read as under :

The first defendant before the trial Judge filed application under Order VII Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against him.

A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

In a suit for specific performance there should be an agreement by the defendant or by a person duly authorized by a power of attorney executed in his favour by the owner.

In the case on hand, only the agreement between the plaintiff and the second defendant has been filed along with the plaint under Order VII Rule 14(1).

It is alleged that the 2nd defendant as agreement holder of the 1st defendant and also as the registered power of attorney holder of the 1st defendant executed the agreement of sale. Neither the documents were filed along with the plaint nor the terms thereof have been set out in the plaint. The two documents were to be treated as part of the plaint as being the part of the cause of action. It is settled law that where a document issued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint.

A perusal of the power of attorney in the present case only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed or admit ex*****on before the Registrar.

Though the plaint avers that the 2nd defendant is the agreement holder of the 1st defendant, the said agreement is not produced.

The plaint has not shown a complete cause of action of privity of contract between the plaintiff and the first defendant or on behalf of the 1st defendant. To reject the plaint even before registration of the plaint on one or more grounds mentioned in Order VII Rule 11 of the Code, the other defendants need not necessarily be heard at all as it does not affect their rights. A plea as to the non-joinder of the party cannot be raised for the first time before this Court if the same was not raised before the trial Court and has not resulted in failure of justice. In the case of nonjoinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on rejection of the plaint under Order VII Rule 11, 2nd defendant is not a necessary party, hence he need not be impleaded.

The application for rejection of the plaint of the appellant-1st defendant seeks no relief against the respondent herein-2nd defendant. It is settled legal position that a party against whom no relief is claimed in the application is not a necessary party at all.

Appellant-1st defendant is not seeking rejection of the plaint in part. On the other hand, the 1st defendant has prayed for rejection of the plaint as a whole for the reason that it does not disclose a cause of action and not fulfilling the statutory provisions.

In view of the shortfall in the plaint averments, statutory provisions, namely, Order VII Rule 11. Rule 14(1) and Rule 14(2), Form Nos. 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the 1st defendant the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the plaintiff was given to the 2nd defendant in the suit and rightly rejected the plaint as against the 1st defendant.

Reference : Supreme Court. The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman v. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, civil appeal no. 4841 of 2012

18/10/2012

Every citizen of india should know the law! And what is their legal right! Most of the indian don't know their legal right!

06/10/2012

All sorts and kind of legal service provider

06/10/2012

SC: UNWARRANTED REMARKS, BRING THE JUDICIARY DOWNHILL
The operative part of the judgement read as under :

The present appeal frescoes a picture and exposits a canvas how, despite numerous pronouncements of this Court, while dealing with the defensibility of an order passed by a Judge of subordinate court when it is under assail before the superior Court in appeal or revision, the imperative necessity of use of temperate and sober language warranting total restraint regard being had to the fact that a judicial officer is undefended and further, more importantly, such unwarranted observations, instead of enhancing the respect for the judiciary, create a concavity in the hierarchical system and bring the judiciary downhill, have been totally ostracized.

For more than four decades this Court has been laying emphasis on the sacrosanct duty of a Judge of a superior Court on to employ the language in judgement so that a message to the officer concerned is conveyed. It has been clearly spelt out that there has to be a process of reasoning while unsettling the judgement and such reasoning are to be reasonably stated with clarity and result orientation. A distinction has been lucidly stated between a message and a rebuke. A Judge is required to maintain decorum and sanctity which are inherent in judicial discipline and restraint. A judge functioning at any level has dignity in the eyes of the public and credibility of the entire system is dependent on use of dignified language and sustained restraint, moderation and sobriety. It is not to be forgotten that independence of judiciary has an insegregable and inseparable link with its credibility.

A judge of a superior Court however strongly he may feel about the unmerited and fallacious order passed by an officer, but is required to maintain sobriety, calmness, dispassionate reasoning and poised restraint. The concept of loco parents has to take a foremost place in the mind to keep at bay any uncalled for any unwarranted remarks.

Every judge has to remind himself about the aforesaid principles and religiously adhere to them.

The observations, the comment and the eventual direction were wholly unwarranted and uncalled for. The learned Chief Judicial Magistrate had felt that the (sic) due to the delay and other ancillary factors there was no justification to exercise the power under Section 156 (3) of the Code. The learned Single Judge, as is manifest, had a different perception of the whole scenario. Perceptions of fact and application of law may be erroneous but that never warrants such kind of observations and directions.

Reference : Supreme Court. Amar Pal Singh v. State of U.P. & Anr., criminal appeal no. 651 of 2009 (from the Judgement and Order dated 31.5.2007 of the High Court of Judicature at Allahabad in Criminal Revision No. 1541 of 2007).