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Citation: LU

Updated Law Society

Law Updates Digest

2018

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1 2

CONTEXT

SUBJECT /ACT INDEX

Arbitration and Conciliation Act, 1996 -

S. 8 — termination of agreement by one

party on account of breach committed by the

other, position of arbitration clause … 32

S. 11(6) -- … 34

Code of Civil Procedure, 1908-

S. 97 — no bar to file an application for

amendment of decree … 25

S. 99 — No decree can be reversed or subs-

tantially varied … 66

S. 27 Read with O. 5 R. 1, 5 and 20(3) —

Service of summons … 21

Order 1 Rule 10. Order 22 Rule 4 and

Sections 151 & 153 — expired prior to filing

of suit … 25

O.9 R.13 … 21

O.6 R. 17 — Amendment of plaint after final

decree … 23

O. 6 R. 17 — property can be added in

the list after preliminary decree … 24

O. 7 R. 11 - What to consider … 59

O. 7 R. 11 – Whether the plaint as a whole

can be rejected … 59

FROM THE DESK OF THE CHIEF EDITOR

Again, I got the most privileged task as a member of the Editorial

Board of your beloved Law Journal. After the first publication,

during the entire month, we have enriched ourselves with the

valuable suggestions of the readers and all our Editors invested

tireless efforts to improve the journal in various aspects. We

are very respectful to the response we got in the first month

from the Readers so that we can retain the position we got in

your library.

To meet the demand of our valuable readers, we have published

Digest with Full Text Judgements in CD version also from this

month.

Besides the Paper Back and CD version of the Digest, we have

already very successfully launched a unique service which is

being availed by various legal professionals across the Country;

Judgement on Demand; In the daily life of a busy legal

professional, it is very tough and tiresome job for them to find

out the appropriate judgement from the huge library at the

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Editorial Board with his specific requirement and we strive our

best to find out the best possible judgement from our available

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during Court hours also legal professional can get the Full Text

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We hope we will not be deprived to get your continuous support

as before.

Dated: 30.04.2018

Order 13, Rule 3 and Order 7 Rule 11 —

Difference between Memorandum of family

settlement and Family Settlement … 50

Non mentioning of the correct provision … 25

Code of Criminal Procedure, 1973-

S. 125 (3) –- Limitation to file claim for due

maintenance … 53

S. 156 (3) — Further investigation … 17

S. 167 (2) – Grant of statutory bail … 46

173(8) — re-investigation after making charge

and discharge of co-accused … 17

173(8) — jurisdiction to ignore police reports … 18

S. 173 – direction for Further investigation

final report had been submitted, cognizance

had been taken, accused had appeared, and

trial is underway … 19

S. 256 – Whether dismissal of complaint

due to non-appearance of the complainant

amounts to acquittal … 45

S.438 —Nature of conditions which may be

imposed … 44

S. 439 — Application for Bail to Session Court

or High Court without filing before the Magistrate … 22

S. 439 — court should exercise discretion

in a judicious manner … 33

S. 439 — Accused surrendered before

the High Court – jurisdiction of Court … 41

S. 340 — prosecution u/s 340 instituted

without recording of finding … 26

S. 340 — necessary conditions for initiation

proceeding … 29

S. 154 — Guidelines for registering F.I.R. … 26

Ss. 228,397 and 482 — jurisdiction of the

High Court to consider a challenge of an

order of framing charge … 38

Constitution of India, 1950 –

Article 21, 215 … 37

Article 215 — Inherent Power of High Court to

stay a trial under the Prevention of Corruption Act … 40

Consumer Protection Act, 1986 –

Complaint by Consumer Association formed

by affected flat buyers … 57

Medical Negligence — Principles for deciding … 63

Criminal Trial

Role of Public Prosecutor … 20

Guidelines to conduct … 21

Imposition of jail sentence and fine both Mandatory … 44

Delhi Land Reforms Act, 1954 –

Use of agricultural land for other purposes … 65

3 4

East Kolkata Wetlands (Conservation And

Management) Act, 2006 –

Conversion from agricultural to non-

agricultural land … 40

Evidence Act, 1872

S. 33 — statements made by a witness in

an earlier judicial proceeding … 56

S.65B (4) — Electronic record – Requirement

of certificate … 53

S. 65B (2)— Electronic record —Specified

conditions … 53

S. 65B (4) – Electronic record — Conditions

to be fulfilled … 55

65B (4) – Electronic record – Certificate … 55

S. 65B (4), 62 – Electronic record - If an electronic

record as such is used as primary evidence … 55

S.65 B — not admissible unless accompanied

by a certificate … 57

S. 114 … 22

Whatsapp forward as evidence … 23

S.90, 110 — Presumption of title as a result

of Possession … revenue record is not a

document of title … 46

Fundamental Right – … 56

General Clauses Act, 1897 –

S. 27 … 22

Hindu Adoption and Maintenance Act, 1956 –

S. 9 — Giving in Adoption by biological

mother to her newly married husband … 32

Hindu Marriage Act, 1955-

S. 13 – wife’s right to residence at her husband’s

place during pendency of Divorce … 30

S. 13 – wife attempted to commit suicide

— ground for divorce … 58

S. 13 – Wife’s claim to get separated from her

in laws and to live separately with husband—

amounts to cruelty … 59

S. 13 – Validity of Divorce Decree passed by

Foreign Court … 61

S. 13B – Waiver of Statutory period … 62

S.13B - Whether, statutory period prescribed

is mandatory or directory … 62

S.13B – where marriage totally unworkable,

emotionally dead, beyond salvage and broken

down – no need to wait … 63

S. 13B - further development during pendency

of the transfer application — statutory period waived … 63

Hindu Succession Act, 1955-

Relinquishment of the rights of other heirs … 50

5 6

Indian Contract Act,1872 –

S. 23 and 24 — Doctrine of Severablity … 34

Indian Penal Code, 1860 –

S. 325 — Imposition of jail sentence and

fine both mandatory … 44

Indian Registration Act, 1908 –

Sec.17,49 — Family Settlement compulsorily

registrable … 50

Indian Stamp Act, 1899 -

Art. 45, Sec. 35 — stamped in proper manner … 50

Indian Succession Act, 1925 –

S. 281, 282 — testator not knowing English

— Execution doubted … 43

Loss of original Will … 43

Interpretation of Statue - … 44

Kerala Buildings(Lease and Rent Control)Act,1965

S. 11(4)(iii) and 11(4)(iv) — eviction granted

on one ground does not mean surviving have

become non-est … 46

Land Acquisition Act, 1894

S. 28-A — Determination of compensation

on the ground of delay … 45

Land Encroachment Act, 1905-

Revenue record is not a document of title … 47

Limitation Act, 1877 –

S.17, 21, 22 … 35

Art. 137 — Execution of preliminary decree

for partition … 66

Modification of Order –

No instruction of client – Complaint against Lawyer … 45

Motor Vehicles Act, 1988-

S. 2(30) — Definition of Owner … 31

Vehicle was driving in wrong side … 58

Negotiable Instruments Act, 1882 –

S. 138; service of notice on a specific date … 22

S.138 – Whether dismissal of complaint

due to non-appearance of the complainant

amounts to acquittal … 45

S.138 – Statutory notice send through Fax … 52

S. 138 — Security Cheque … 55

Passport Act, 1967 –

Whether father’s name is mandatory

in Passport … 56

Prevention of Corruption Act, 1988 –

S.19(3)(b) and (c) … 37

Stay of Proceedings … 37

Protection of Women from Domestic

Violence Act, 2005 –

7 8

Limitation in filing the complaint … 52

Whether maintainable where 498-A of the

Indian Penal Code is pending … 52

Service Matter –

Contract Employee – Whether can claim

for renewal of Contract … 45

Stay of proceedings - … 37

Transfer of Criminal Case - … 43

West Bengal Cooperative Societies Act, 1983 –

S. 79, 80 — Nomination of share in

Cooperative Society and disposal of share

of the deceased … 60

West Bengal Cooperative Societies Act, 2006 -

S. 102 -- Suit challenging wrongful

termination of the building contract -

Whether the plaint is liable to be rejected

as it is barred … 60

West Bengal Estate Acquisition Act, 1953

S. 5A — settlement records of right are not

the documents of title … 51

West Bengal Land Reforms Act, 1955 –

Recording of Barga … 41

S. 18 — Recording of Barga —

Standard of proof … 42

S. 18 — Refusal by landowner to

accept the share of produce … 42

S. 19A (2A) — Lodging of complaint for

grant receipt … 42

West Bengal Land Reforms and

Tenancy Tribunal Act, 1997 –

S. 5A — settlement records of right

are not the documents of title … 51

Wetlands (Conservation & Management)Rules, 2006 –

S. 2(c) … 40

Rule 4(vi) Wetland Construction prohibited … 40

Words and Phrases –

Investigation, Further Investigation

and De novo Investigation … 19

Writ Petition –

Minor rape victim prayed for termination

of pregnancy … 47

CITATION INDEX

“A” through her Father “F” vs State

of U.P. through Prin. Secy., Med & Health

Ser. & Ors; LU(Apr 35) 2018 ALL; … 47

Amarsang Nathaji As Himself And As

Karta And Manager Vs Hardik

Harshadbhai Patel And Others;

LU(April 13) 2018 SC; … 29

9 10

Amit Kumar and others vs Bhushan

Lal; LU(Apr 28) 2018 SC; … 44

Amrutbhai Shambhubhai Patel Vs

Sumanbhai Kantibhai Patel & Ors.;

LU(April 1) 2018 SC; … 17

Anjana Kishore vs Puneet Kishore;

LU (Apr 56) 2018 SC; … 63

Anvar P. V. (S) vs P. K. Basheer and

others; LU (Apr 42) 2018 SC; … 53

Asian Resurfacing of Road Agency

Pvt Ltd and Another vs Central Burueau;

LU(Apr 20) 2018 SC; … 36

Auto Cars vs Trimurti Cargo Movers Pvt Ltd

and Others; LU(April 4) 2018 SC; … 21

Geeta Kapoor and Another vs State of Haryana

and Another; LU(Apr 38) 2018 P & H; … 52

Harita Sunil Parab Vs State Of Nct Of Delhi

And Others; LU (Apr 25) 2018 SC; … 43

Harpal Singh vs Ashok Kumar and Another;

LU(Apr 58) 2018 SC; … 65

Indrani Wahi vs Registrar of Co-op. Societies

and Ors; LU (Apr 51) 2018 SC; … 60

Kusum Sharma and Others vs Batra Hospital

and Medical Research Centre and Others; LU

(Apr 57) 2018 SC; … 63

Karam Chand (Dead) by Lrs. and

Another vs State of Himachal Pradesh and

Another; LU(Apr 30) 2018 SC; … 45

Kunal Kumar Tiwari @ Kunal Kumar Vs State

Of Bihar And Another; LU (Apr 26) 2018 SC; … 44

K.L.N.V. Veeranjaneyulu Vs Union of India

& Ors.; LU (Apr 45) 2018 SC; … 56

Leela Rajagopal and others vs Kamala

Menon Cocharan and Others; LU (Apr 24)

2018 SC; … 43

Lt. Col. Prasad Shrikant Purohit vs State

of Mahasashtra; LU(Apr 18) 2018 SC; … 31

Manti Devi and Another vs Kishun Sah @

Kishun Deo Sao and Others; LU (Apr 60)

2018 SC; … 66

Mangla Ram vs The Oriental Insurance Co. Ltd.

and Others; LU (Apr 48) 2018 SC; … 57

Manish Goel vs Rohini Goel;

LU (Apr 54) 2018 SC; … 62

Mr. Gopal Chandra Ghosh vs Mr. Chandi

Charan De; LU(Apr 37) 2018 CAL; … 51

Mrs. Hema Khattar and Another vs

Shiv Khera; LU(April 17) 2018 SC; … 32

11 12

M/s Ajeet Seeds Ltd vs K. Gopala

Krishnaiah; LU (April 6) 2018 SC; … 22

M/s Amrapali Sapphire Developer Pvt Ltd vs

M/S. Amrapali Sapphire Flat Buyers Welfare

Association; LU (Apr 47) 2018 SC; … 57

M/s Sil Import USA vs M/s Exim Aides Silk

Exporters Bangalore; LU(Apr 39) 2018 SC; … 52

Naba Nagari Co-operative Housing Society

Limited & Anr.; LU (Apr 50) 2018 CAL; … 59

Narendra vs K. Meena; LU (Apr 49) 2018 SC; … 58

National Lawyers Campaign For Judical

Transparency And Reforms and others vs

Union of India and Others; LU(April 7) 2018 SC; … 23

Naveen Kumar vs Vijay Kumar and Others;

LU(April 15) 2018 SC; … 31

Nikhil Kumar vs Rupali Kumar; LU (Apr 53)

2018 SC; … 62

Pankajbhai Rameshbhai Zalavadia vs Jethabhai

Kalabhai Zalavadiya (deceased) Through

LRs & Ors; LU(April 10) 2018 SC; … 25

Peethani Suryanarayana & Anr. vs Repaka

Venkata Ramana Kishore & Ors;

LU(April 8) 2018 SC; … 23

Prem Sagar Manocha vs State (NCT of Delhi);

LU(April 11) 2018 SC; … 26

Rambeer Shokeen vs State of NCT of Delhi;

LU(Apr 31) 2018 SC; … 45

Sampelly Satyanarayana Rao vs Indian

Renewable Energy Development Agency Limited;

LU (Apr 43) 2018 SC … 55

S. Satnam Singh and others vs Surender Kaur

and Another; LU(April 9) 2018 SC; … 24

Shafhi Mohammad vs The State of Himachal

Pradesh; LU (Apr 41) 2018 SC; … 53

Shailender Kumar vs State of Bihar and Others;

LU(April 3) SC 2018; … 21

Shalu Nigam & Anr Vs The Regional Passport

Officer & Anr; LU (Apr 44) 2018 DEL; … 55

Shanta @ Ushadevi & Anr vs B. G. Shivananjappa;

LU (Apr 40) 2018 SC; … 53

Shweta Gupta vs Rahul Keshav Jadhao and

Another; LU(Apr 16) 2018 ALL; … 32

Shiv Kumar vs Hukam Chand and Another;

LU(April 2) 2018 SC; … 20

Sita Ram Bhama vs Ramvatar Bhama;

LU(Apr 36) 2018 SC; … 50

Smt Poonam vs Sumit Tanwar;

LU (Apr 55) 2018 SC; … 62

Sri Subhash Chandra Das Chowdhury

vs Smt. Sandhya Das Chowdhury;

LU(April 14) 2018 Cal; … 30

13 14

Sundeep Kumar Bafna vs State of

Maharashtra and Another; LU (April 5) 2018 SC; … 22

Shin Satellite Public Co Ltd vs M/s.

Jain Studios Limited; LU(Apr 19) 2018 SC; … 34

Shambhunath Nath Ghosh and others

vs The State of West Bengal and Others;

LU (Apr 23) 2018 SC; … 41

Sonu @ Amar vs State of Haryana;

LU(Apr 46) 2018 SC; … 56

Splendour Commercial Pvt. Ltd. &

Anr. vs Authority & Ors.; LU (Apr 21) 2018 Cal; … 40

Sundeep Kumar Bafna vs State Maharashtra

and Another; LU(Apr 22) 2018 SC; … 40

The State of A.P. & Ors vs M/s Star

Bone Mill & Fertiliser Co; LU(Apr 34) 2018 SC; … 46

The State of Uttar Pradesh vs Tribhuwan

and Ors; LU(Apr 27) 2018 SC; … 44

Venu vs Ponnusamy Reddiar (Dead) Thr.

Lrs & Anr; LU (Apr 59) 2018 SC; … 66

V. K. Bhat vs G. Ravi Kishore and Another;

LU(Apr 29) 2018 SC; … 45

Valiyavalappil Sarojakshan & ors.

Sumalsankar Gaikevada; LU(Apr 33) 2018 SC; … 46

Y. Narasimha Rao and Others vs Y. Venkata

Lakshmi and Another; LU (Apr 52) 2018 SC; … 61

Yogesh Mahajan vs Prof. R. C. Deka,

Director All India Institute of Medical Science;

LU(Apr 30) 2018 SC; … 45

Youth Bar Association of India vs Union

of India and others; LU(April 12) 2018 SC; … 26

15 16

LU(April 1) 2018 SC

Code of Criminal Procedure, 1973; S. 156 (3) — Further

investigation — Held: on receipt of the report, before taking

cognizance of the offence alleged, may direct further

investigation under sub-Section (3) of Section 156 Cr.P.C.

and require the police to make further report and that such

power can be exercised suo motu, contingent on its

satisfaction of the necessity thereof to espouse the cause of

justice. (Para 27)

Code of Criminal Procedure, 1973; S. 156(3) — Whether a

judicial Magistrate, after taking cognizance of an offence, on

the basis of a police report and after appearance of the

accused in pursuance of the process issued, can order of its

own, further investigation — Held: the Magistrate of his own,

cannot order further investigation after the accused had

entered appearance pursuant to a process issued to him

subsequent to the taking of the cognizance by him. (Para

31)

Code of Criminal Procedure, 1973; S. 173(8) — Whether,

after the charge-sheet had been filed by the investigating

agency under Section 173(2) Cr.P.C, and charge had been

framed against some of the accused persons on the basis

thereof, and other co-accused had been discharged, the

Magistrate could direct the investigating agency to conduct

a re-investigation or further investigation under sub-Section

(8) of Section 173 — Held: after taking cognizance of an offence

on the basis of a police report and after the appearance of

the accused, a Magistrate cannot of its own order further

investigation, though such an order could be passed on the

application of the investigating authority — the power of the

investigating officer to make a prayer for conducting further

investigation in terms of Section 173(8) of the Code was not

taken away only because a charge-sheet had been filed under

Section 173(2) and a further investigation was permissible

even if cognizance had been taken by the Magistrate — once

a charge-sheet was filed under Section 173(2) Cr.P.C and

either charges have been framed or the accused have been

discharged, the Magistrate may on the basis of a protest

petition, take cognizance of the offence complained of or on

the application made by the investigating authority, permit

further investigation under Section 173(8), but he cannot

suo motu direct a further investigation or order a re-

investigation into a case on account of the bar of Section

167(2) of the Code. (Para 32, 33)

Code of Criminal Procedure, 1973; S. 173(8) — Whether

in exercise of powers under Section 173 Cr.P.C, the Trial

Court has the jurisdiction to ignore any of the police reports,

where there was more than one, whether by the same or

different investigating agencies submitted in furtherance of

the orders of a Court — Held: the investigating agency was

thus competent to file a report supplementary to its primary

report and that the former was to be treated by the Court in

continuation of the latter. (Para 36)

Code of Criminal Procedure, 1973; S. 173 — Whether

Magistrate can direct further investigation either suo moto

17 18

or on the prayer of the informant after the final report had

been submitted, cognizance had been taken, accused had

appeared, and trial is underway — Held: that though the

investigating agency concerned has been invested with the

power to undertake further investigation desirably after

informing the Court thereof, before which it had submitted

its report and obtaining its approval, no such power is

available therefor to the learned Magistrate after cognizance

has been taken on the basis of the earlier report, process

has been issued and accused has entered appearance in

response thereto. At that stage, neither the learned Magistrate

suo motu nor on an application filed by the complainant/

informant direct further investigation. Such a course would

be open only on the request of the investigating agency and

that too, in circumstances warranting further investigation

on the detection of material evidence only to secure fair

investigation and trial, the life purpose of the adjudication in

hand — Though the Magistrate has the power to direct

investigation under Section 156(3) at the pre-cognizance stage

even after a charge-sheet or a closure report is submitted,

once cognizance is taken and the accused person appears

pursuant thereto, he would be bereft of any competence to

direct further investigation either suo motu or acting on the

request or prayer of the complainant/informant.

Words and Phrases — Investigation, Further Investigation

and De novo Investigation — Held: Whereas initial

investigation was alluded to be one conducted in furtherance

of registration of an FIR leading to a final report under Section

173(2) of the Code, further investigation was a phenomenon

where the investigating officer would obtain further oral or

documentary evidence after the final report had already been

submitted, so much so that the report on the basis of the

subsequent disclosures/discoveries by way of such evidence

would be in consolidation and in continuation of the previous

investigation and the report yielded thereby. “Fresh

investigation” “reinvestigation” “de novo investigation”,

however is an exercise, which it was held, could neither be

undertaken by the investigating agency suo motu nor could

be ordered by the Magistrate and that it was essentially within

the domain of the higher judiciary to direct the same and

that too under limited compelling circumstances warranting

such probe to ensure a just and fair investigation and trial.

(Para 39) LU(April 1) 2018 SC

LU(April 2) 2018 SC

Criminal Trial — Role of Public Prosecutor — Whether

Public Prosecutor can be allowed to sit back, handing over

conduct of prosecution to counsel engaged by complainant

— Held: It is not merely an overall supervision which the

Public Prosecutor is expected to perform in such cases when

a privately engaged counsel is permitted to act on his behalf

— It is the duty of a Public Prosecutor to conduct the case

for the Crown fairly. His object should be, not to obtain an

unrighteous conviction, but, as representing the Crown, to

see that justice is vindicated: and, in exercising his discretion

as to the witnesses whom he should or should not call, he

should bear that in mind — a Public Prosecutor should not

refuse to call or put into the witness-box for cross-

19 20

examination a truthful witness returned in the calendar as a

witness for the Crown, merely because the evidence of such

witness might in some respects be favorable to the defence

— If the role of the Public Prosecutor is allowed to shrink to

a mere supervisory role the trial would become a combat

between the private party and the accused which would

render the legislative mandate a dead letter. LU(April 2) 2018

SC

LU(April 3) 2018 SC

Criminal Trial — Guidelines to conduct — Murder trial —

in a murder trial it is sordid and repulsive matter that without

informing the police station officer-in-charge, the matters are

proceeded by the Court and by the APP and tried to be

disposed of as if the prosecution has not led any evidence —

It was the duty of the Sessions Judge to issue summons to

the investigating officer if he failed to remain present at the

time of trial of the case — It is his duty to keep the witnesses

present — If there is failure on part of any witness to remain

present, it is the duty of the Court to take appropriate action

including issuance of bailable/non-bailable warrants as the

case may be — It should be well understood that prosecution

cannot be frustrated by such methods and victims of the

crime cannot be left in lurch. LU(April 3) 2018 SC

LU (April 4) 2018 SC

Code of Civil Procedure, 1908; O. 9 R. 13 — Code of

Civil Procedure, 1908; S. 27 Read with O. 5 R. 1, 5 and

20(3) — Whether service of summons without mentioning

specific day, date, year and time can be held as ‘summons

duly served — the legislature while prescribing the format

of summons in the Code has provided one column where the

Court is required to mention a specific “day, date, year and

time” for the defendant’s appearance in the Court to enable

him to answer the suit filed against him/her —This is also

the requirement prescribed under Section 27 of the Code as

is clear from the words occurring therein “and may be served

in the manner prescribed on such day” — mentioning of the

specific “day, date, year and time” in the summons is a

statutory requirement prescribed in law (Code) and, therefore,

it cannot be said to be an empty formality — Direction to

appear within 15 days’ time without mentioning a specific

day, date, year and time is not in conformity with the

requirements of Section 27 read with Appendix B. LU (April

4) 2018 SC

LU (April 5) 2018 SC

Code of Criminal Procedure, 1973; S. 439 — Application

for Bail to Session Court or High Court without filing

application before the Magistrate — If maintainable — Held:

that there are no restrictions on the High Court or Sessions

Court to entertain an application for bail, provided, accused

is in custody LU (April 5) 2018 SC

LU (April 6) 2018 SC

General Clauses Act, 1897; S. 27 — Evidence Act, 1872;

S. 114 —Negotiable Instruments Act, 1882; S. 138 —

Whether it is necessary to state that the notice issued under

21 22

Section 138 of the NI Act by the complainant was served

upon the respondent-accused on any specific date — Held:

since the NI Act does not require that notice should only be

given by ‘post’ in a case where the sender has despatched

the notice by post with correct address written on it, Section

27 of the GC Act could be profitably imported and in such a

situation service of notice is deemed to have been effected on

the sender unless he proves that it was really not served and

that he was not responsible for such non-service — Section

114 of the Evidence Act enables the Court to presume that

in the common course of natural events, the communication

would have been delivered at the address of the addressee.

LU (April 6) 2018 SC

LU(April 7) 2018 SC

Evidence Act, 1872; — Whether Whatsapp forward can be

treated as document as per Evidence Act — Held: Annexure

- A does not even qualify as a document in terms of the

Evidence Act, 1872, in as much as, neither the original nor

the copy of the original has been produced. It is an admitted

position that the petitioners have not seen original and have

had no occasion to even compare Annexure - A with the

original. LU(April 7) 2018 SC

LU(April 8) 2018 SC

Code of Civil Procedure, 1908; O. 6 R. 17 — Amendment of

plaint after a final decree is passed in a suit for partition

— application for amendment of a mistake, said to be a

clerical one, in the decree, seeking deletion of the Town Survey

No. 462 and substituting the same by the Town Survey No.

463 — The village became a part of the municipality, by reason

whereof a new Town Survey was assigned to the suit land

being Town Survey No. 463 — In the plaint and consequently

in the preliminary decree as also in the final decree, Town

Survey No. 462 was mistakenly mentioned, which was

evidently a typographical mistake — The facts are not

disputed. The identity of the suit land has not been changed

— It is not a case where, as submitted by Mr. Mahabir Singh,

one land is being substituted by another — The fact that the

town survey No. 463 is a joint family property is not in dispute

— As indicated hereinbefore, it is the same plot which was

the subject matter of sale — Order of the High Court

confirming the order of the Civil Court allowing the

amendment is confirmed. LU(April 8) 2018 SC

LU(April 9) 2018 SC

Code of Civil Procedure, 1908; O. 6 R. 17 — Whether a

property can be added in the list of properties after a

preliminary decree is passed in a partition suit is the

question involved herein — Held: In certain situations, for

the purpose of complete adjudication of the disputes between

the parties an appellate Court may also take into

consideration subsequent events after passing of the

preliminary decree — The Trial Court felt that it had

committed a mistake. In such a situation, the court, in our

opinion, committed no infirmity in directing rectification of

its mistake.

23 24

Code of Civil Procedure, 1908; S. 97 — Section 97 of the

Code of Civil Procedure provides for an appeal against

preliminary decree but the said provision, in our opinion,

would not be a bar to file an application for amendment of a

decree. LU(April 9) 2018 SC

LU (April 10) 2018 SC

Limitation Act, 1877, section 17, 21, 22 — Civil Procedure

Code; Order 1 Rule 10. Order 22 Rule 4 and Sections 151

& 153* — Whether the legal representatives of deceased can

be impleaded under Order 1 Rule 10 of the Code where such

defendant expired prior to the filing of the suit particularly

when the application filed by the plaintiff to bring the legal

representatives of the deceased on record under Order 22

Rule 4 of the Code was dismissed earlier as not maintainable

— Held: merely because the earlier application filed by the

appellant under Order 22 Rule 4 of the Code was dismissed

on 09.09.2009 as not maintainable, it will not prohibit the

plaintiff from filing another application, which is maintainable

in law (Para 8)— No adjudication of the application to bring

legal representatives on record on merits by virtue of the

order dated 09.09.2009 — The order passed by the trial Court

on the application filed under Order 22 Rule 4 of the Code,

dated 09.09.2009, will not act as res-judicata — Appeal

allowed— Trial Court is directed to implead the legal

representatives of deceased.

Civil Procedure Code; Order 1 Rule 10, Order 22 Rule 4 and

Sections 151 &153 — Merely because of the non mentioning

of the correct provision as Order 1 Rule 10 of the Code at

the initial stage by the advocate for the plaintiff, the parties

should not be made to suffer— Courts are meant to do justice

and not to decide the applications based on technicalities

(Para14) LU (April 10) 2018 SC

LU(April 11) 2018 SC

Code of Criminal Procedure, 1973; S. 340 — Whether

prosecution under section 340 of Cr.P.C is to be instituted

by court without recording finding — Held: It is not

mandatory that the court should record a finding — What is

now required is only recording the finding of the preliminary

inquiry which is meant only to form an opinion of the court,

and that too, opinion on an offence ‘which appears to have

been committed’, as to whether the same should be duly

inquired into. LU(April 11) 2018 SC

LU (April 12) 2018 SC

Code of Criminal Procedure, 1973; S. 154 — Guidelines

to be followed by the police while registering F.I.R. —(a)

An accused is entitled to get a copy of the First Information

Report at under Section 207 of the Cr.P.C.

(b) An accused who has reasons to suspect that he has been

roped in a criminal case and his name may be finding place

in a First Information Report can submit an application

through his representative/agent/parokar for grant of a

certified copy before the concerned police officer or to the

Superintendent of Police on payment of such fee which is

payable for obtaining such a copy from the Court. On such

25 26

application being made, the copy shall be supplied within

twenty-four hours.

(c) Once the First Information Report is forwarded by the

police station to the concerned Magistrate or any Special

Judge, on an application being filed for certified copy on behalf

of the accused, the same shall be given by the Court

concerned within two working days. The aforesaid direction

has nothing to do with the statutory mandate inhered under

Section 207 of the Cr.P.C.

(d) The copies of the FIRs, unless the offence is sensitive in

nature, like sexual offences, offences pertaining to insurgency,

terrorism and of that category, offences under POCSO Act

and such other offences, should be uploaded on the police

website, and if there is no such website, on the official website

of the State Government, within twenty-four hours of the

registration of the First Information Report so that the accused

or any person connected with the same can download the

FIR and file appropriate application before the Court as per

law for redressal of his grievances. It may be clarified here

that in case there is connectivity problems due to geographical

location or there is some other unavoidable difficulty, the

time can be extended up to forty-eight hours. The said 48

hours can be extended maximum up to 72 hours and it is

only relatable to connectivity problems due to geographical

location.

(e) The decision not to upload the copy of the FIR on the

website shall not be taken by an officer below the rank of

Deputy Superintendent of Police or any person holding

equivalent post. In case, the States where District Magistrate

has a role, he may also assume the said authority. A decision

taken by the concerned police officer or the District Magistrate

shall be duly communicated to the concerned jurisdictional

Magistrate.

(f) The word ‘sensitive’ apart from the other aspects which

may be thought of being sensitive by the competent authority

as stated hereinbefore would also include concept of privacy

regard being had to the nature of the FIR. The examples

given with regard to the sensitive cases are absolutely

illustrative and are not exhaustive.

(g) If an FIR is not uploaded, needless to say, it shall not

enure per se a ground to obtain the benefit under Section

438 of the Cr.P.C.

(h) In case a copy of the FIR is not provided on the ground of

sensitive nature of the case, a person grieved by the said

action, after disclosing his identity, can submit a

representation to the Superintendent of Police or any person

holding the equivalent post in the State. The Superintendent

of Police shall constitute a committee of three officers which

shall deal with the said grievance. As far as the Metropolitan

cities are concerned, where Commissioner is there, if a

representation is submitted to the Commissioner of Police

who shall constitute a committee of three officers. The

committee so constituted shall deal with the grievance within

three days from the date of receipt of the representation and

communicate it to the grieved person.

27 28

(i) The competent authority referred to hereinabove shall

constitute the committee, as directed herein-above, within

eight weeks from today.

(j) In cases wherein decisions have been taken not to give

copies of the FIR regard being had to the sensitive nature of

the case, it will be open to the accused/his authorized

representative/parokar to file an application for grant of

certified copy before the Court to which the FIR has been

sent and the same shall be provided in quite promptitude by

the concerned Court not beyond three days of the submission

of the application.

(k) The directions for uploading of FIR in the website of all

the States shall be given effect from 15th November, 2016.

LU (April 12) 2018 SC

LU(April 13) 2018 SC

Code of Criminal Procedure, 1973; S. 340 — What are

necessary conditions for initiation of proceeding under

section 340 Cr.P.C. — Held: The mere fact that a person

has made a contradictory statement in a judicial proceeding

is not by itself always sufficient to justify a prosecution under

Sections 199 and 200 of the Indian Penal Code (45 of 1860)

(hereinafter referred to as “the IPC”); but it must be shown

that the defendant has intentionally given a false statement

at any stage of the judicial proceedings or fabricated false

evidence for the purpose of using the same at any stage of

the judicial proceedings. Even after the above position has

emerged also, still the court has to form an opinion that it is

expedient in the interests of justice to initiate an inquiry into

the offences of false evidence and offences against public

justice and more specifically referred in Section 340(1) of the

CrPC, having regard to the overall factual matrix as well as

the probable consequences of such a 6 Page 7 prosecution.

LU(April 13) 2018 SC

LU (April 14) 2018 Cal

Hindu Marriage Act, 1955; S. 13 — Whether during

pendency of Divorce Suit the wife has right to reside at

her husband’s residence — Wife has been residing at a rental

accommodation — She is employed — Held: once a

matrimonial suit has been filed, the wife has no right to have

a force entry in the house of her husband against his will if

she is provided with maintenance by the husband —

Allegation that the wife tried to enter the house of the husband

forcibly with the help of the local people — Held: The sole

object of the respondent was to frustrate the suit by

contending that she had been staying in the same room as

husband and wife and she has actually taken such plea in

this proceeding — We, however, do not believe such assertion

of the wife after taking into consideration the fact that the

she has initiated proceedings under Section 498A of the

Indian Penal Code during the pendency of the suit and all

the members of the family were arrested — No reasonable

person will believe the statement of the wife that the husband

is staying with her notwithstanding the pendency of the

criminal case where charge has been framed and he is an

29 30

accused person along with other members of the family. LU

(April 14) 2018 Cal

LU(April 15) 2018 SC

Motor Vehicles Act, 1988; Section 2(30) — Definition of

Owner — Due to road traffic accident at about 7:30 pm on

27 May 2009 one died and one injured — Two claim petitions

were filed before the Motor Accident Claims Tribunal of which

one was by injured and another was by the parents of

deceased — vehicle involved in the accident was registered

in the name of First respondent, although he taken plea that

he had sold the vehicle to the Second respondent prior to the

accident — Second respondent also taken plea that he has

sold the vehicle to the third respondent prior to the accident

— Third respondent in turn claimed to have sold the vehicle

to the petitioner — petitioner claimed that he had sold the

vehicle to Meer Singh — Tribunal granted compensation and

held that the First respondent jointly and severally liable

together with the driver of the vehicle when vehicle was

uninsured as the registration certificate of the offending

vehicle continued to be in the name of the First respondent

(Para 2) — appeal before the High Court of Punjab and

Haryana was allowed on the ground that there was no

justification for the Tribunal to pass an award against the

registered owner when there was evidence that he had

transferred the vehicle and the last admitted owner was the

appellant herein — In the view of the High Court, the Tribunal

ought to have passed an award only against the appellant as

the owner — Held : appeal allowed and direct that the liability

to compensate the claimants in terms of the judgment of the

Tribunal will stand fastened upon the First respondent as

he is still registered owner — judgment of the High Court is

set aside (Para 14) LU(April 15) 2018 SC

LU(Apr 16) 2018 ALL

Hindu Adoption and Maintenance Act, 1956; S. 9 — Giving

in Adoption by biological mother to her newly married

husband after divorce from the biological father of the child

without consent of the biological father — Whether possible

— Right of giving son or daughter in adoption is impermissible

to be exercised by either of them without consent of the other,

unless one of them has renounced the world or has ceased

to be a Hindu or has been declared by a court of competent

jurisdiction to be of unsound mind — However the Court

noticed that the biological father took no responsibility of

the child — Held: in view of complete detachment of the

biological father from the child who did not perform any of

the fatherly duties, the mother cannot be restrained from

lawfully including the child in her new family — Wife will be

permitted to give Master Lakshya in adoption to

respondent no.1 for which purpose giving and taking

ceremony in adoption shall be performed and a deed of

adoption shall also be executed and registered in terms

of section 16 of the Act, 1956. LU(Apr 16) 2018 ALL

LU(April 17) 2018 SC

Arbitration And Conciliation Act, 1996; S. 8 — Whether

termination of agreement by one party on account of

31 32

breach committed by the other can make the arbitration

clause inoperative — Held: where an agreement is

terminated by one party on account of the breach committed

by the other, particularly, in a case where the clause is framed

in wide and general terms, merely because agreement has

come to an end by its termination by mutual consent, the

arbitration clause does not get perished nor is rendered

inoperative.

Arbitration And Conciliation Act, 1996; S. 8 — Whether

termination of agreement by one party on account of

breach committed by the other can make the arbitration

clause inoperative — Held: the prerequisites for an

application under Section 8 are fulfilled, viz., there is an

arbitration agreement; the party to the agreement brings an

action in the court against the other party; the subject matter

of the action is the same as the subject-matter of the

arbitration agreement; and the other party moves the court

for referring the parties to arbitration before it submits his

first statement on the substance of the dispute — the civil

court had no jurisdiction to entertain a suit after an

application under Section 8 of the Act is made for arbitration.

LU(April 17) 2018 SC

LU (Apr 18) 2018 SC

Code of Criminal Procedure, 1973; S. 439 — Grant of Bail

— The court granting bail should exercise its discretion in a

judicious manner and not as a matter of course — Though

at the stage of granting bail a detailed examination of evidence

and elaborate documentation of the merit of the case need

not be undertaken, there is a need to indicate in such orders

reasons for prima facie concluding why bail was being granted

particularly where the accused is charged of having

committed a serious offence — Any order devoid of such

reasons would suffer from non-application of mind — It is

also necessary for the court granting bail to consider, among

other circumstances, the following factors also before granting

bail; they are: (a) The nature of accusation and the severity

of punishment in case of conviction and the nature of

supporting evidence. (b) Reasonable apprehension of

tampering with the witness or apprehension of threat to the

complainant. (c) Prima facie satisfaction of the court in

support of the charge. LU (Apr 18) 2018 SC

LU(Apr 19) 2018 SC

Arbitration and Conciliation Act, 1996; S. 11(6) — Indian

Contract Act,1872; S. 23 and 24 —— Doctrine of

Severablity — Petitioner Company registered under the laws

of Thailand, having its principal office in Thailand, carries

on the satellite business and provides broadcasting and

internet services to various Companies/ firms in the world

including respondent Company having its registered office

at New Delhi —— agreement was entered into between them

for availing satellite and Broadcasting services against

payment of fees and in the agreement there was an arbitration

clause for settling of disputes — as a result of a dispute letter/

notice to the respondent demanding for arbitration issued

and it was informed that the petitioner appointed its arbitrator

and request was made to appoint the arbitrator on the part

33 34

of the respondent — respondent’s advocate contending that

the arbitration clause was not legal — subsequently, in reply-

affidavit, respondent urging that the Arbitration Agreement

was not legal and valid as contained a condition that the

arbitrator’s determination would be treated as final and

binding and the parties had waived all rights of appeal or

objection — it is also submitted that the disputes were to be

resolved by arbitration under the rules of United Nations

Commission on International Trade Law (UNCITRAL) —

question for consideration is whether the arbitration

agreement is legal, valid and enforceable — Held: it is

wellsettled that if the contract is in several parts, some of

which are legal and enforceable and some are unenforceable,

lawful parts can be enforced provided they are severable —

partial invalidity in contract will not ipso facto make the whole

contract void or unenforceable —Wherever a contract contains

legal as well as illegal parts and objectionable parts can be

severed, effect has been given to legal and valid parts striking

out the offending parts — Court further held that the sub-

clause making the award ‘final and conclusive was clearly

separable from the main clause which made reference to an

arbitrator imperative —The existence of the sub-clause or

the fact that the sub-clause appears to be void does not in

any way affect the right of the parties to have recourse to

arbitration and does not make a reference to an arbitrator

any the less an alternative remedy — In the present case,

clause 23 has one objectionable part which is clearly

severable from other three legal parts and as it is independent

of the dispute being referred to and resolved by an arbitrator

and therefore, the agreement is legal, lawful and the offending

part as to the finality and restraint in approaching a Court of

law can be separated and severed by using a blue pencil — It

is the duty of the court to severe and separate trivial or

technical part by retaining the main or substantial part and

by giving effect to the latter if it is legal, lawful and otherwise

enforceable — Court must consider the question whether

the parties could have agreed on the valid terms of the

agreement had they known that the other terms were invalid

or unlawful — If the answer affirmative, the doctrine of

severability would apply and the valid terms of the agreement

could be enforced, ignoring invalid terms — clause 20

(Severability) expressly states that if any provision of the

agreement is held invalid, illegal or unenforceable, it would

not prejudice the remainder — Reference of a dispute to an

arbitrator, by no means can be declared illegal or unlawful

— therefore, no objection can be raised by the respondent

against the agreement — as the agreement provides ’Delhi’

as the venue and since that part of the agreement is

enforceable, the prayer of the respondent to shift the same

to Singapore cannot be granted — since there is failure on

the part of the respondent in making an appointment of an

arbitrator in accordance with the agreement, even after receipt

of notice, the prayer cannot be granted at this stage —

arbitration petition allowed and Hon’ble Mr. Justice M.L.

Pendse (Retired) is accordingly appointed as Sole Arbitrator

LU(Apr 19) 2018 SC

LU(Apr 20) 2018 SC

Stay of proceedings — Wherever stay is granted, a speaking

order must be passed showing that the case was of

35 36

exceptional nature and delay on account of stay will not

prejudice the interest of speedy trial in a corruption case -

Once stay is granted, proceedings should not be adjourned

and concluded within two-three months.

Stay of proceedings — All pending cases where stay against

proceedings of a civil or criminal trial is operating, the same

will come to an end on expiry of six months from today unless

in an exceptional case by a speaking order such stay is

extended - In future, the stay will end on expiry of six months

from the date of such order of stay unless similar extension

is granted by a speaking order - Speaking order must show

that continuing the stay was more important than having

the trial finalized - Trial Court where order of stay of civil or

criminal proceedings is produced, may fix a date not beyond

six months of the order of stay so that on expiry of period of

stay, proceedings can commence unless order of extension

of stay is produced.

Constitution of India, 1950; Art 21, 215 — Criminal

Procedure Code, 1973; Ss. 228,397 and 482 — Prevention

of Corruption Act, 1988; Ss.19(3)(b) and (c) - Order Framing

of Charge challenged - There is no bar to jurisdiction of the

High Court to consider a challenge against an order of framing

charge in exceptional situation - Exercise of such jurisdiction

has to be limited to rarest of rare cases - Decision of such a

petition should not be delayed - Normally time should not

exceed two-three months - If stay is granted, it should not

normally be unconditional or of indefinite duration -

Appropriate conditions may be imposed on the party in whose

favour stay is granted - Where the matter remains pending

for longer period, the order of stay will stand vacated on expiry

of six months, unless extension is granted by a speaking

order showing extraordinary situation.

Criminal Procedure Code, 1973; Ss 228,397 and 482 —

Prevention of Corruption Act, 1988; Sections 19(3)(b) and

(c) — Framing of Charge - Stay of Proceedings - Order framing

charge may not be held to be purely a interlocutory order

and can in a given situation be interfered with under Section

397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution

- But the power of the High Court to interfere with an order

framing charge and to grant stay is to be exercised only in an

exceptional situation - Madhu Limaye case still hold the field

— Order framing charge is not purely an interlocutory order

nor a final order — Jurisdiction of the High Court is not

barred - Jurisdiction is to be exercised consistent with the

legislative policy to ensure expeditious disposal of a trial

without the same being in any manner hampered - Thus

considered, the challenge to an order of charge should be

entertained in a rarest of rare case only to correct a patent

error of jurisdiction and not to re-appreciate the matter -

Even where such challenge is entertained and stay is granted,

the matter must be decided on day-to-day basis so that stay

does not operate for an unduly long period - Though no

mandatory time limit may be fixed, the decision may not

exceed two-three months normally — If it remains pending

longer, duration of stay should not exceed six months, unless

extension is granted by a specific speaking order, as already

37 38

indicated - Mandate of speedy justice applies to the PC Act

cases as well as other cases where at trial stage proceedings

are stayed by the higher court i.e. the High Court or a court

below the High Court, as the case may be — In all pending

matters before the High Courts or other courts relating to PC

Act or all other civil or criminal cases, where stay of

proceedings in a pending trial is operating, stay will

automatically lapse after six months from today unless

extended by a speaking order on above parameters - Same

course may also be adopted by civil and criminal appellate/

revisional courts under the jurisdiction of the High Courts

— The trial courts may, on expiry of above period, resume

the proceedings without waiting for any other intimation

unless express order extending stay is produced.

Prevention of Corruption Act, 1988 Ss. 19(3)(b) and (c) —

Stay of Proceedings - Interdict against stay of proceedings

under this Act on the ground of any error, omission or

irregularity in the sanction granted by the authority is lifted

if the Court is satisfied that the error, omission or irregularity

has resulted in a failure of justice — No Court shall stay

proceedings under PC Act on “any other ground” - Held that

these are grounds referable to the proceedings under PC Act

and there is no warrant to add words not found in sub-section

(c), namely, that these grounds should be relatable to sanction

only.

Constitution of India, 1950 Article 215 — Prevention of

Corruption Act, 1988 Ss. 19(3)(b) and (c) — Inherent Power

of a High Court to stay a trial under the PC Act is

Constitutional and not Statutory Law — High Courts are

established by the Constitution - Inherent power of a Court

set up by the Constitution is a power that inheres in such

Court because it is a superior court of record, and not because

it is conferred by the Code of Criminal Procedure — Section

19(3)(c) cannot be read as a ban on the maintainability of a

petition before the High Court under Section 482, the non-

obstante clause in Section 19(3) applying only to the Code of

Criminal Procedure. LU(Apr 20) 2018 SC

LU (Apr 21) 2018 Cal

East Kolkata Wetlands (Conservation And Management)

Act, 2006; — Application for conversion of land at Mouza

Jagadipota for construction of school building — East Kolkata

Wetlands is also included within the list of Wetlands in India

identified as Ramsar site under Ramsar Convention on

wetlands — The land of the petitioners are described as

urban/rural settlement area in the Table No.9 under Schedule

1, framed as per Section 2(c) of the Wetlands (Conservation

& Management) Rules, 2006 — Held: Since construction of

a permanent nature within the wetlands area is prohibited

under Rule 4(vi) of the said Rules, the petitioners’ prayer for

allowing its land to be converted from agriculture to non-

agriculture land, in my view, cannot be allowed either by the

Wetlands Authority or by the Land Reforms Department of

the State of West Bengal. LU (Apr 21) 2018 Cal

LU(Apr 22) 2018 SC

Code of Criminal Procedure, 1973; S. 439 — Accused

surrendered before the High Court — Declined with the

39 40

observations that it is the Magistrate whose jurisdiction has

necessarily to be invoked and not of the High Court or even

the Sessions Judge — Held: learned Single Judge erred in

law in holding that he was devoid of jurisdiction so far as the

application presented to him by the Appellant before us was

concerned. Conceptually, he could have declined to accept

the prayer to surrender to the Courts’ custody, although, we

are presently not aware of any reason for this option to be

exercised. Once the prayer for surrender is accepted, the

Appellant before us would come into the custody of the Court

within the contemplation of Section 439 CrPC. The Sessions

Court as well as the High Court, both of which exercised

concurrent powers under Section 439, would then have to

venture to the merits of the matter so as to decide whether

the applicant/ Appellant had shown sufficient reason or

grounds for being enlarged on bail. LU(Apr 22) 2018 SC

LU(Apr 23) 2018 Cal

West Bengal Land Reforms Act, 1955 — Recording of

Barga — Held that in order to establish bargadar in the land

of another person, the Bargadar must prove the following:

1. that he himself is cultivating land from his own sources;

2. that he shares crops with the land owner, in the proportion

provided in the Act and such factum of sharing of crops must

be established by documentary evidence, namely receipt;

3. that in case of refusal to accept the share crops by the

land owner, he must deposit the same to the credit of the

land owner with the concerned Block Land and Land Reforms

Officer and obtain a receipt;

4. that in case of refusal to grant receipt against tendering of

share crops, the bargadar has to lodge a complaint before

the Magistrate under Section 19A (2A) of the West Bengal

Land Reforms Act.

West Bengal Land Reforms Act, 1955. S. 19A (2A) —

Lodging of complaint — Held: therein that lodging of such

complaint, prima facie establishes the fact of refusal to grant

receipt as Section 19A (2A) of the West Bengal land Reforms

Act provides that refusal to grant receipt is a punishable

offence and the same is cognizable also. Therefore, the

importance of issuance of receipt is well understood.

West Bengal Land Reforms Act, 1955; S. 18 — Recording

of Barga — Standard of proof — Held: though laws of evidence

is not strictly applied in such proceeding but the basic facts

regarding cultivation of the petitioners’ land by the respondent

No.7 and sharing of produce between them in the same

proportion as mentioned in the said Act are required to be

proved by substantive evidence.

West Bengal Land Reforms Act, 1955; S. 18 — Refusal by

landowner to accept the share of produce — Duty cast upon

claimed Barga — He should intimate the B.L. & L.R.O. and

must deposit the share of crop with the Revenue Officer

against receipt — Issuance of notice to the Land owners

regarding deposit of such share of crops — Intimation given

to the Pradhan about the refusal to accept the share of the

produce by the petitioner, cannot be regarded as due

41 42

compliance of the provision contained in Section 18 of the

West Bengal Land Reforms Act, 1955. LU(Apr 23) 2018 Cal

LU(Apr 24) 2018 SC

Indian Succession Act, 1925; Ss. 281, 282 — Whether

execution of will in English can be doubted on ground that

testator was not knowing English language — Held: The lack

of knowledge of English even if can be attributed to the

testator would not fundamentally alter the 14 Page 15

situation inasmuch as before registration of the Will the

contents thereof can be understood to have been explained

to the testator or ascertained from her by the Sub Registrar,

who had deposed that such a practice is normally adhered

to.

Indian Succession Act, 1925; — Loss of original Will —

Held: The stand of the plaintiff that the original Will was lost

while in the custody of her mother and her knowledge of

such loss on the day of her mother’s death cannot be

disbelieved merely because no report in this regard was lodged

before the police. LU(Apr 24) 2018 SC

LU (Apr 25) 2018 SC

Transfer of Criminal Case — The convenience of the parties

does not mean the convenience of the petitioner alone who

approaches the court on misconceived notions of

apprehension — Convenience for the purposes of transfer

means the convenience of the prosecution, other accused,

the witnesses and the larger interest of the society. LU (Apr

25) 2018 SC

LU (Apr 26) 2018 SC

Interpretation of Statue — In interpreting a provision of an

underlying the Act (whether that purpose or object is expressly

stated in the Act or not) should be preferred to an

interpretation that would not promote the object.

Code of Criminal Procedure, 1973; S. 438 — Nature of

conditions which may be imposed under Section 438 Cr.

P. C. — onerous anticipatory bail conditions are alien and

cannot be sustained in the eyes of law. The conditions

imposed appear to have no nexus with the good

administration of justice or advancing the trial process, rather

it is an over-zealous exercise in utter disregard to the very

purpose of the criminal justice system. LU (Apr 26) 2018 SC

LU(Apr 27) 2018 SC

Criminal Trial — Indian Penal Code, 1860; S. 325 —

Imposition of jail sentence and fine both is mandatory

once the accused is held guilty for the offence punishable

under Section 325 IPC which may extend upto 7 years.

LU(Apr 27) 2018 SC

LU(April 28) 2018 SC

Modification of Order – Submission of Counsel without

instruction of client – Complaint against Lawyer to Bar

Council – As order passed based on the submission made by

Lawyer without instruction of client, Order partly set aside.

LU(April 28) 2018 SC

43 44

LU(Apr 29) 2018 SC

Code of Criminal Procedure, 1973; S. 256 — Negotiable

Instruments Act, 1882; S. 138 —Whether dismissal of

complaint due to non-appearance of the complainant

amounts to acquittal of the accused under section 256 Cr.P.C.

– Held: In the facts of the case, that dismissal of the complaint

for non-appearance of the complainant amounts to acquittal

as contemplated in Section 256 of the Code of Criminal

Procedure. LU(Apr 29) 2018 SC

LU(Apr 30) 2018 SC

Service Matter – Contract Employee – Whether can claim

for renewal of contract – Held: No contract employee has a

right to have his or her contract renewed from time to time.

LU(Apr 30) 2018 SC

LU (Apr 31) 2018 SC

Land Acquisition Act, 1894 ; S 28-A — Determination of

compensation have been rejected on the ground of delay

— Held: limitation is prescribed and it is expected that the

aggrieved party takes remedies within such prescribed time,

the delay can be extended in appropriate cases LU (Apr 31)

2018 SC

LU (Apr 32) 2018 SC

Code of Criminal Procedure, 1973; S. 167 (2) – Grant of

statutory bail – Application filed for extension of time for

filing chargesheet —— Such prayer allowed – Chargesheet

filed within the extended time – Held: Grant of statutory bail

of the appellant vide application dated 2nd March, 2017, on

the ground of default, did not survive for further consideration

— Right to grant of statutory bail would have enured to the

accused only after rejection of the request for extension of

time prayed by the Additional Public Prosecutor. LU (Apr

32) 2018 SC

LU(Apr 33) 2018 SC

Kerala Buildings (Lease and Rent Control) Act, 1965; Ss.

11(4)(iii) and 11(4)(iv) — Eviction on one the ground of two

— whether the landlords are entitled proceed for a decree for

eviction on other grounds taken by him in the petitions for

eviction — Held, merely because the landlords have taken

possession on the basis of an order for eviction granted on

one ground, that does not mean that the surviving grounds

have become non-est – appeal allowed. LU(Apr 33) 2018 SC

LU(Apr 34) 2018 SC

Land Encroachment Act, 1905; S. 6, 7 – Evidence Act,

1872; S. 90, 110 – Presumption of title as a result of

possession, can arise only where facts disclose that no title

vests in any party — Possession of the plaintiff is not prima

facie wrongful, and title of the plaintiff is not proved — It

certainly does not mean that because a man has title over

some land, he is necessarily in possession of it — if at any

time a man with title was in possession of the said property,

the law allows the presumption that such possession was in

continuation of the title vested in him — person must

45 46

establish that he has continued possession of the suit

property — other side claiming title, must make out a case of

trespass/ encroachment etc — mere acceptance of municipal

tax or agricultural tax by a person, cannot stop the State

from challenging ownership of the land — Nor can such a

presumption arise in case of grant of loan by a bank upon it

hypothecating the property — revenue records confer title,

for the reason that they merely show possession of a person

— Held: A revenue record is not a document of title — It

merely raises a presumption in regard to possession. LU(Apr

34) 2018 SC

LU(Apr 35) 2018 ALL

Writ Petition — Minor rape victim prayed for termination

of pregnancy – Held: we feel that the ends of justice will be

met by issuing following directions to the opposite parties:-

(1)We direct and allow the Child Welfare Committee of District

Lucknow to take over the cause of adoption of the child born

to “A” on 26th October, 2015, who is presently in the care of

Paediatrics Department of King George’s Medical University,

Lucknow. The Department shall handover the child as and

when the doctors find that the child is medically fit to be

handed over to the committee. The committee shall,

thereafter, act in the manner provided in the judgment. The

Member Secretary of the State Legal Services Authority in

consultation with the amicus curiae shall supervise the

process of adoption.

(2)As soon as “A” regains her mental balance and equilibrium,

she will be allowed admission in a proper class in an

appropriate school. The first and foremost preference should

be given to any Kasturba Gandhi Girls’ School. These are

residential schools in which girls are allowed to stay and

taken care of completely. They are given food, shelter, books,

uniforms and matterial for recreation also. If “A” or her

parents approach the authorities of Kasturba Gandhi

Residential School of her choice, admission should be allowed

to her. If an application is made to the Basic Shiksha Adhikari

of the District it shall be his duty to ensure admission of “A”

in one of the best run schools of Kasturba Gandhi Residential

Schools of the District.

(3)If “A” chooses not to go to residential school then a

Government Girls’ Inter College of her choice will allow her

admission without insisting on any entrance examination or

the criteria of selection on merit basis. The State Government

should ensure that education is provided free of costs to “A”.

She will be allowed full freeship of fees and other charges

whatsoever.

(4)It shall be the duty of the Principal of the college concerned

to ensure that the teachers of the college, staff and the

students do not discriminate her in any manner. All possible

mental, moral and psychological help should be given by the

teachers to help her gain strength to face the challenges of

life. The principal should also ensure that the past life of “A”

is not propagated and she is treated as another normal

student of the school.

(5)If “A” wants to continue her studies after 10+2 Standard

(Intermediate), admission should be given to her in any

47 48

government degree college with full free ship of fee. This will

continue till graduation.

(6)In addition to payment of Rs.3,00,000/- as compensation

under Rani Lakshmi Bai Mahila Samman Kosh Rules, 2015,

the State Government shall make a fixed deposit of a sum of

Rs.10,00,000/- (Rupees Ten lacs) in favour of “A” in any

nationalized bank which will be given to her only when she

reaches the age of 21 years. The District Magistrate of the

District where the family of “A” chooses to live henceforth

will ensure that bank account is opened in the name of “A”

in any nationalized bank, chosen by her father. It is made

clear that at the maturity of the aforesaid fixed deposit, only

“A” will be entitled to get the money.

(7)Superintendent of Police of the District where “A” and her

family choose to reside will ensure the safety, security and

dignity of the family. No one from the society should be

allowed to degrade, discriminate or excommunicate the victim

or her family on the ground of unfortunate incident of rape.

(8)If “A” applies for any apprenticeship in any available

scheme or in any vocational course of any Government

department or any other instrumentality of the State,

preference should be given to her in such matters.

(9)After attaining the age of majority, some suitable job be

also provided to her according to her ability / qualifications.

Such security of job is the surest way of bringing her up in

the main stream once again. When occasion arises the

petitioner shall have the liberty of moving an application to

the Chief Secretary of the State to ensure that a suitable job

is provided to her.

(10)The N.G.O.s or any other agency which wants to help the

victim and her family in any manner, will be welcome to do

so and earn the appreciation of this Court as well as of the

society in general. LU(Apr 35) 2018 ALL

LU(Apr 36) 2018 SC

Indian Stamp Act, 1899 : Art. 45, Sec. 35 – Indian

Registration Act, 1908; Sec.17,49 – Hindu Succession

Act, 1955 – Code of Civil Procedure,1908 ; Order 13,

Rule 3 – Civil Procedure Code, 1908; Order 7 Rule 11—

Difference between Memorandum of family settlement

and Family Settlement – the alleged memorandum of family

settlement divided the entire property between plaintiff and

defendant and there is relinquishment of the rights of other

heirs of the properties and as such it is Family Settlement

and not memo (Para 11) – memo does not create any right —

the document was compulsorily registrable under Section

17 of the Registration Act as there was relinquishment of

share – it should be stamped in proper manner as specified

in the Indian Stamp Act – document also being not stamped

could not have been accepted in evidence (Para 13) — whether

the said document could have been accepted by the trial

court in evidence or not — whether the said unregistered

and properly not stamped document which was inadmissible

in evidence could have been used for any collateral purpose

— Held: the same are not admissible in evidence for the

49 50

purpose of proving primary purpose of partition – unstampped

instrument is not admissible in evidence even for collateral

purpose, until the same is impounded by paying stamp with

penalty . LU(Apr 36) 2018 SC

LU(Apr 37) 2018 CAL

West Bengal Estate Acquisition Act, 1953; S. 5A —- West

Bengal Land Reforms and Tenancy Tribunal Act, 1997 –

West Bengal Land Reforms Act, 1956 – Revenue Officer

hold that the transfer made by Sarat Chandra Ghosh, by

way of family settlement to his sons, was not bona fide —

The petitioners approached the tribunal by filing a

Miscellaneous Application for securing the compliance of the

direction of the Civil Court — The tribunal, dictated the

petitioners to prefer appeal before the appellate authority

holding that the order under Section 5A of the West Bengal

Estate Acquisition Act, 1953 has been appealable — in a

suit, in which State of West Bengal was a party, the title of

these petitioners was declared and their possession was

confirmed — The State of West Bengal and, naturally, its

men, agents and employees were restrained from giving effect

to the order dated January 14, 1969 disposing of the

proceeding under Section 5A of the West Bengal Estate

Acquisition Act, 1953 — Held: there was no escape from not

complying with the directions passed by the competent civil

court — The settlement records of right are not the

documents of title — Therefore, it must yield to the decree

of the civil court. LU(Apr 37) 2018 CAL

LU (Apr 38) 2018 P & H

Protection of Women from Domestic Violence Act, 2005; —

Whether limitation in filing the complaint under the DV

Act, 2005 is one year – Held: In case of subsisting

relatiohship of husband and wife, there is no limitation.

Meaning thereby that the complaint under the D.V. Act, can

be filed at any time as the physcical and mental harassment

within the family is a continuing offence.

Protection of Women from Domestic Violence Act, 2005; —

Whether complaint under D.V.Act, is maintainable where

a case under Section 498-A of the Indian Penal Code is

already pending? – Held: It is held that both proceedings

are of different nature and can be filed separately. In this

case the proceedings under the D.V Act, can continue on the

same set of facts of a case under Section 406, 498-A IPC. LU

(Apr 38) 2018 P & H

LU(Apr 39) 2018 SC

Negotiable Instruments Act, 1882; S. 138 – Statutory notice

send through Fax – Whether valid – Held: Legislature

contemplated that notice in writing should be given to the

drawer of the cheque, the legislature must be presumed to

have been aware of the modern devices and equipment

already in vogue and also in store for future – When

Parliament contemplated notice in writing to be given we

cannot overlook the fact that Parliament was aware of modern

devices and equipment already in vogue — Notice envisaged

in clause (b) of the proviso to Section 138 was transmitted

51 52

by fax it would be compliance with the legal requirement. LU

(Apr 39) 2018 SC

LU (Apr 40) 2018 SC

Code of Criminal Procedure, 1973; S. 125 (3) – Limitation

to file claim for due maintenance – Considering the peculiar

circumstances of the case the Court held that the bar under

Section 125(3) cannot be applied. LU (Apr 40) 2018 SC

LU (April 41) 2018 SC

Evidence Act, 1872; S. 65B (4) – Electronic record —

Requirement of certificate – Held: Furnishing certificate

is to be applied only when such electronic evidence is

produced by a person who is in a position to produce such

certificate being in control of the said device and not of the

opposite party — Requirement of certificate under Section

65B(h) is not always mandatory; LU (Apr 41) 2018 SC

LU (Apr 42) 2018 SC

Evidence Act, 1872; S. 65B (2) – Electronic record — Specified

conditions — (i) The electronic record containing the

information should have been produced by the computer

during the period over which the same was regularly used to

store or process information for the purpose of any activity

regularly carried on over that period by the person having

lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record

or of the kind from which the information is derived was

regularly fed into the computer in the ordinary course of the

said activity;

(iii) During the material part of the said period, the computer

was operating properly and that even if it was not operating

properly for some time, the break or breaks had not affected

either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a

reproduction or derivation from the information fed into the

computer in the ordinary course of the said activity.; LU (Apr

42) 2018 SC

Evidence Act, 1872; S. 65B (4) – Electronic record —

Conditions to be fulfilled — (a) There must be a certificate

which identifies the electronic record containing the

statement;

(b) The certificate must describe the manner in which the

electronic record was produced;

(c) The certificate must furnish the particulars of the device

involved in the production of that record;

(d) The certificate must deal with the applicable conditions

mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a

responsible official position in relation to the operation of

the relevant device. LU (Apr 42) 2018 SC

Evidence Act, 1872; S. 65B (4) – Electronic record –

Certificate — The person issuing certificate needed only to

state in the certificate that the same is to the best of his

53 54

knowledge and belief — Such a certificate must accompany

the electronic record like computer printout, Compact Disc

(CD), Video Compact Disc (VCD), pen drive, etc., pertaining

to which a statement is sought to be given in evidence, when

the same is produced in evidence. LU (Apr 42) 2018 SC

Evidence Act, 1872; S. 65B (4) – Electronic record — If an

electronic record as such is used as primary evidence under

Section 62 of the Evidence Act, the same is admissible in

evidence, without compliance of the conditions in Section

65B of the Evidence Act. LU (Apr 42) 2018 SC

LU (Apr 43) 2018 SC

Negotiable Instruments Act, 1882; S. 138; Security

Cheque –The word Security Cheque has been used in the

agreement — The said expression refers to the cheques being

towards repayment of installments — The repayment becomes

due under the agreement, the moment the loan is advanced

and the installment falls due — Once the loan was disbursed

and installments have fallen due on the date of the cheque

as per the agreement, dishonour of such cheques would fall

under Section 138 of the Act — The cheques undoubtedly

represent the outstanding liability. LU (Apr 43) 2018 SC

LU (April 44) 2018 DEL

Passport Act, 1967 – Whether father’s name is mandatory

in Passport — Being divorced the wife brought up the child

as single mother — Biological father had completely abdicated

his responsibilities – Passport authority insisted upon

petitioner No. 2 mentioning her father’s name in the

application — Name of the biological father in the Passport

only if it is a requirement in law, like standing instructions,

manuals etc. In the absence of any provision making it

mandatory to mention the name of one’s biological father in

the Passport, the respondents cannot insist upon the same

— Court is of the view that mother’s name is sufficient in

certain cases like the present one to apply for Passport,

Especially as a single woman can be a natural guardian and

also a parent — Directed to modify software and accept the

application and issue her a Passport without insisting upon

mentioning her father’s name. LU (Apr 44) 2018 DEL

LU (Apr 45) 2018 SC

Fundamental Right – To speak out ideas freely and express

thoughts adequately — Curtailment of an individual writer/

author’s right to freedom of speech and expression should

never be lightly viewed. LU (Apr 45) 2018 SC

LU (Apr 46) 2018 SC

Evidence Act, 1872; S. 33 — Whether the statements made

by a witness in an earlier judicial proceeding can be

considered relevant for proving the truth or facts stated in a

subsequent judicial proceeding — Section 33 of the Evidence

Act allows for this inter alia where the witness is incapable

of getting evidence in the subsequent proceeding LU (Apr

46) 2018 SC;

Evidence Act, 1872; S. 65B — Admissibility of electronic

record — not admissible unless it is accompanied by a

certificate as contemplated under Section 65B (4) of the Indian

55 56

Evidence Act – CDR has been marked as Exhibit without

certificate during trial — objection relating to the mode or

method of proof has to be raised at the time of marking of

the document as an exhibit and not later — The mode or

method of proof is procedural and objections, if not taken at

the trial, cannot be permitted at the appellate stage – Held:

an objection that CDRs are unreliable due to violation of the

procedure prescribed in Section 65 B (4) cannot be permitted

to be raised at this stage as the objection relates to the mode

or method of proof. LU (Apr 46) 2018 SC;

LU (Apr 47) 2018 SC

Consumer Protection Act, 1986; — Consumer complaint

by Consumer Association formed by affected flat buyers –

Whether maintainable – Held: consumer complaint on behalf

of more than then consumers can be filed by a recognized

consumer association — The only requirement would be to

direct each and every allottee on whose behalf the complaint

is filed to file an affidavit concerning the prayers to the extent

they pertain to his individual grievances — If the aggregate

value of the services in respect of the flat buyers on whose

behalf this complaint is filed is taken exceeds Rs. 1 crore

the National Commission does possession the requisite

jurisdiction to entertain the complaint – Appeal challenging

the observation of National Commission upheld by the

Supreme Court; LU (Apr 47) 2018 SC;

LU (Apr 48) 2018 SC

Motor Vehicles Act; 1988; Insurance claim against motor

accident — Whether the vehicle was driving in wrong side –

Held: The Spot where the motor vehicle was found lying after

after the accident cannot be the basis to assume that it was

driven in or around that spot at the relevant time – It can

safely inferred that after the accident of this nature in which

the appellant suffered severe injuries necessitating

amputation of his right leg above the knee level, the

motorcycle would be pushed forward after the collision and

being hit by a high speeding jeep. LU (Apr 48) 2018 SC

LU (Apr 49) 2018 SC

Hindu Marriage Act, 1955; S. 13 – Divorce on the ground

of cruelty against wife – Wife attempted to commit suicide by

pouring kerosene without any reason – Observed that no

husband would ever be comfortable with or tolerate such an

act by his wife and if the wife succeeds in committing suicide,

then one can imagine how a poor husband would get

entangled into the clutches of law, which would virtually ruin

his sanity, peace of mind, career and probably his entire life

— The mere idea with regard to facing legal consequences

would put a husband under tremendous stress – Held: Only

this one event was sufficient for the Appellant husband to

get a decree of divorce on the ground of cruelty; LU (Apr 49)

2018 SC

Hindu Marriage Act, 1955; S. 13 –; Wife’s claim to get

separated from her in laws and to live separately with

husband — Observed that In India, generally people do not

subscribe to the western thought, where, upon getting

married or attaining majority, the son gets separated from

the family – A wife is expected to be with the family of the

husband after the marriage — No husband would tolerate

57 58

this and no son would like to be separated from his old

parents and other family members, who are also dependent

upon his income – Held: The persistent effort of the

Respondent wife to constrain the Appellant to be separated

from the family would be torturous for the husband; LU (Apr

49) 2018 SC

LU(April 50) 2018 CAL

Code of Civil Procedure, 1908; O. 7 R. 11 – What to consider

while Rejection of plaint – Held: Court is required to consider

the pleadings made out in the plaint itself and the annexures

thereto for ascertaining as to whether the plaint is liable to

be rejected on any of the grounds as mentioned therein —

Court cannot consider any other document and/or material

beyond the pleadings made out in the plaint and/or

annexures thereto. LU (Apr 50) 2018 CAL

Code of Civil Procedure, 1908; O. 7 R. 11 – Whether the

plaint as a whole can be rejected when part of the plaintiff’s

claim can be adjudicated upon by the Civil Court — Absence

of independent cause of made the plaint liable to be rejected

in whole. LU (Apr 50) 2018 CAL

West Bengal Cooperative Societies Act, 2006; S. 102 —

Suit challenging wrongful termination of the building contract

— Whether the plaint is liable to be rejected as it is barred

under the provision contained in Section 102 of the West

Bengal Cooperative Societies Act, 2006 – In absence of any

contradiction it can be assumed that the business of housing

co-operative society is of constructing dwelling units for its

members — the dispute between the plaintiff and the

Cooperative Society concerns the business of the said

Cooperative Society and it relates to the affairs of the said

Cooperative Society and such dispute is a dispute within the

meaning of the dispute under Section 4(25) of the West Bengal

Cooperative Societies Act, 2006 which is capable of resolution

by the Registrar as per the provision of Section 102 of the

said Act — the Civil Court as per the provision of Section

102 (4) of the said Act. LU (Apr 50) 2018 SC;

LU (Apr 51) 2018 SC

West Bengal Cooperative Societies Act, 1983; S. 79, 80 –

Nomination of share in Cooperative Society and disposal of

share of the deceased in the Co-operative Society – Held:

Where a member of a cooperative society nominates a person

in consonance with the provisions of the Rules, on the death

of such member, the cooperative society is mandated to

transfer all the share or interest of such member in the name

of the nominee — The rights of others on account of an

inheritance or succession is a subservient right — Only if a

member had not exercised the right of nomination under

Section 79, then and then alone, the existing share or interest

of the member would devolve by way of succession or

inheritance — However, necessary to notice that Rule 127

postulates nomination only in favour of a person “belonging

to his family” LU (Apr 51) 2018 SC;

59 60

LU (Apr 52) 2018 SC

Hindu Marriage Act, 1955; S. 13 – Validity of Divorce Decree

passed by Foreign Court – Held: The present decree

dissolving the marriage passed by the foreign court is without

jurisdiction according to the Act as neither the marriage was

celebrated nor the parties last resided together nor the

respondent resided within the jurisdiction of that Court —

The decree is also passed on a ground which is not available

under the Act which is applicable to the marriage — the decree

has been obtained by the 1st appellant by stating that he

was the resident of the Missouri State when the record shows

that he was only a bird of passage there and was ordinarily a

resident of the State of Louisiana – Such divorce decree cannot

be taken into consideration.

Hindu Marriage Act, 1955; S. 13 – Validity of Divorce Decree

passed by Foreign Court – Rules framed are The jurisdiction

assumed by the foreign court as well as the grounds on which

the relief is granted must be in accordance with the

matrimonial law under which the parties are married. The

exceptions to this rule may be as follows: (i) where the

matrimonial action is filed in the forum where the respondent

is domiciled or habitually and permanently resides and the

relief is granted on a ground available in the matrimonial

law under which the parties are married; (ii) where the

respondent voluntarily and effectively submits to the

jurisdiction of the forum as discussed above and contests

the claim which is based on a ground available under the

matrimonial law under which the parties are married; (iii)

where the respondent consents to the grant of the relief

although the jurisdiction of the forum is not in accordance

with the provisions of the matrimonial law of the parties. LU

(Apr 52) 2018 SC

LU (Apr 53) 2018 SC

Hindu Marriage Act, 1955; S. 13B – Waiver of Statutory

period in Mutual Divorce – Respondent is scheduled to travel

abroad and will not be able to return after the statutory period

– Both the parties are aware of the consequences – Statutory

period waived. LU (Apr 53) 2018 SC

LU (Apr 54) 2018 SC

Hindu Marriage Act, 1955; Sec. 13B – Waiver of statutory

period — Whether, statutory period prescribed under Section

13-B(1) of the Act is mandatory or directory — if directory,

whether could be dispensed with even by the High Court in

exercise of its writ/appellate jurisdiction — jurisdiction of

this Court under Article 142 could not be used to waive the

statutory period of six months for filing the second motion

under Section 13B, as doing so will be passing an order in

contravention of a statutory provision — this is not a case

where there has been any obstruction to the stream of justice

or there has been injustice to the parties, which is required

to be eradicated, and this Court may grant equitable relief.

LU (Apr 54) 2018 SC

LU (Apr 55) 2018 SC

Hindu Marriage Act, 1955; Sec. 13B – Waiver of statutory

period – Application filed on 09.09.2009 – Direction issued

61 62

on 25.11.2009 to wait for six months — Power under Article

142 had been exercised in cases where the Court found the

marriage to be totally unworkable, emotionally dead, beyond

salvage and broken down irretrievably — This power was

also exercised to put quietus to all litigations and to save the

parties from further agony — delay in disposal of the case by

the Family Court – not a fit case for delay — petition is

dismissed . LU (Apr 54) 2018 SC

LU (Apr 56) 2018 SC

Hindu Marriage Act, 1955; Sec. 13B – Waiver of statutory

period – Application for transfer was filed – Considering

further development during pendency of the transfer

application, direction given to file application under section

13B before the same Lower Court along with a petition to

dispense with the statutory period and on filing such

application Lower Court to dispense with the statutory period.

. LU (Apr 56) 2018 SC

LU (Apr 57) 2018 SC

Consumer Protection Act, 1986 – Medical Negligence –

Principles for deciding medical negligence :

I. Negligence is the breach of a duty exercised by omission to

do something which a reasonable man, guided by those

considerations which ordinarily regulate the conduct of

human affairs, would do, or doing something which a prudent

and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The

negligence to be established by the prosecution must be

culpable or gross and not the negligence merely based upon

an error of judgment.

III. The medical professional is expected to bring a reasonable

degree of skill and knowledge and must exercise a reasonable

degree of care. Neither the very highest nor a very low degree

of care and competence judged in the light of the particular

circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his

conduct fell below that of the standards of a reasonably

competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for

genuine difference of opinion and one professional doctor is

clearly not negligent merely because his conclusion differs

from that of other professional doctor.

VI. The medical professional is often called upon to adopt a

procedure which involves higher element of risk, but which

he honestly believes as providing greater chances of success

for the patient rather than a procedure involving lesser risk

but higher chances of failure. Just because a professional

looking to the gravity of illness has taken higher element of

risk to redeem the patient out of his/her suffering which did

not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he

performs his duties with reasonable skill and competence.

Merely because the doctor chooses one course of action in

preference to the other one available, he would not be liable

if the course of action chosen by him was acceptable to the

medical profession.

63 64

VIII. It would not be conducive to the efficiency of the medical

profession if no Doctor could administer medicine without a

halter round his neck.

IX. It is our bounden duty and obligation of the civil society

to ensure that the medical professionals are not unnecessary

harassed or humiliated so that they can perform their

professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved

from such a class of complainants who use criminal process

as a tool for pressurizing the medical professionals/hospitals

particularly private hospitals or clinics for extracting uncalled

for compensation. Such malicious proceedings deserve to be

discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection

so long as they perform their duties with reasonable skill

and competence and in the interest of the patients. The

interest and welfare of the patients have to be paramount for

the medical professionals. LU (Apr 57) 2018 SC;

LU (Apr 58) 2018 SC

Delhi Land Reforms Act, 1954 – Use of agricultural land for

other purposes – Consequences thereof — Where the land

has not been used for any purpose contemplated under the

Land Reforms Act and has been built upon, it would cease to

be agricultural land — Once agricultural land loses its basic

character and has been converted into authorized/

unauthorized colonies by dividing it into plots, disputes of

plot holders cannot be decided by the revenue authorities

and would have to be resolved by the civil court; LU (Apr 58)

2018 SC

LU (Apr 59) 2018 SC

Limitation Act, 1963; Art. 137 — Execution of

preliminary decree for partition – Limitation thereof – Held:

Until final decree is passed in a partition suit, limitation will

not come into play because the suit continues, till final decree

is passed; LU (Apr 59) 2018 SC

LU (Apr 60) 2018 SC

Code of Civil Procedure, 1908; S. 99 — No decree can be

reversed or substantially varied in appeal on account of

misjoinder or non-joinder of parties LU (Apr 60) 2018 SC

____

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