2017 SCC Vol. 8 October 14, 2017 Part 5

Civil Procedure Code, 1908 — S. 100 — Framing of a substantial question of law in second appeal: Under S. 100 of Code of Civil Procedure substantial question or questions of law are required to be formulated, if they arise for consideration between the parties. [S.N.D.P. Sakhayogam v. Kerala Atmavidya Sangham], (2017) 8 SCC 835]

Civil Procedure Code, 1908 — S. 100 — Second Apeal: Framing of a substantial question of law in second appeal is mandatory. [Apparaju Malhar Rao v. Tula Venkataiah, (2017) 8 SCC 827]

Civil Suit — Jurisdiction/Jurisdictional Error — Issue on jurisdiction — When can be tried — Decision on jurisdiction — When is mandatory: The issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the court. [S.N.D.P. Sakhayogam v. Kerala Atmavidya Sangham, (2017) 8 SCC 830]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor: The paramount consideration while deciding custody matters is to see where the welfare of children lies. [Purvi Mukesh Gada v. Mukesh Popatlal Gada], (2017) 8 SCC 819]

Foreword to Courting Politics: A short introduction to “Courting Politics”, a book written by Sweta Bansal. [Foreword to Courting Politics by Fali S. Nariman], (2017) 8 SCC (J-1)]

Gateway to Arbitration: the Role of Courts in India: In this article, the Indian judiciary’s role in determining gateway issues such as whether an arbitration clause is valid or whether certain disputes are covered by the arbitration clause or whether certain types of disputes are arbitrable or not are examined. Courts exercise these powers under Sections 8, 11 and 45 of the Arbitration and Conciliation Act, 1996 (the Act). Also examined is the changing approach of the courts while dealing with these issues, with a special focus on the amendment to the Arbitration and Conciliation (Amendment) Act, 2015 (the Amendment). [Gateway to Arbitration : The role of courts in India by Ila Kapoor and Ananya Aggarwal, (2017) 8 SCC (J-5)]

Hindu Marriage Act, 1955 — S. 13-B(2) — Divorce by mutual consent — Cooling-off period of six months: For determining whether provision is mandatory or directory, language alone is not decisive and court must have regard to context, subject matter and object of provision. Court can waive off statutory period under S. 13-B(2) in its discretion after considering following factors: (i) statutory period of six months specified in S. 13-B(2) in addition to statutory period of one year separation under S. 13-B(1) is already over before first motion itself; (ii) no likelihood of reconciliation between parties; (iii) parties have genuinely settled all their differences including alimony, custody of child or any other pending issue; and (iv) whether waiting period would only prolong agony. Thus, cooling-off period being directory, it is open to court to exercise its discretion in facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. Moreover, in conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice. [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746]

Prevention of Corruption Act, 1988 — S. 13(2) r/w S. 13(1)(d) r/w S. 120-B and 120-B IPC — Criminal misconduct by public servants: Appellant-accused being Chairperson and Chief Executive Officer (CCEO) of Noida and Deputy Chief Executive Officer of Noida at the relevant time, entered into criminal conspiracy, abusing their position as public servants entrusted with management and control of Noida (modern industrial city), committing gross irregularities in allotment and conversion of land in Noida itself, to one of the two, thereby procuring pecuniary advantage to him, hence, conviction of both accused confirmed. [Rajiv Kumar v. State of U.P., (2017) 8 SCC 791]

Prevention of Corruption Act, 1988 — Ss. 13(1)(d)(i), (ii) and (iii) — Offence of “criminal misconduct” under — When constituted — Principles summarized: A perusal of Sections 13(1)(d)(i), (ii) and (iii), Prevention of Corruption Act, 1988, makes it clear that if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of “criminal misconduct”. Undoubtedly, all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i), PC Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning “obtaining a valuable thing or pecuniary advantage” by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct. [Neera Yadav v. CBI, (2017) 8 SCC 757]

Property Law — Pre-emption — Generally — Right to pre-empt sale of property, claimed herein by co-owner of property under Punjab Pre-emption Act, 1913 — Entitlement — Preconditions: For entitlement to preemption, pre-emptor should possess right to pre-empt on three dates i.e. (i) date of sale; (ii) date of filing of suit; and (iii) date of passing of decree by court of first instance only. [Vijay Singh v. Shanti Devi, (2017) 8 SCC 837]


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