Appointments & TransfersNews

Appointment of Acting Chief Justice of Allahabad High Court

President appoints Shri Justice Munishwar Nath Bhandari, senior-most Judge of the Allahabad High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 26-06-2021 consequent upon the retirement of Shri Justice Sanjay Yadav, Chief Justice, Allahabad High Court.


Ministry of Law and Justice

Notification dt. 22-06-2021

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Dinesh Pathak, JJ., held that it is not against the live-in relationship.

Petitioners preferred the present petition stating that they wanted to have a live-in relationship.

During the pendency of the present petition, the above-stated couple converted their live-in relationship to marriage.

Petitioners apprehended that they would be harassed and would not be permitted to live in peace by private respondents.

High Court held that:

We are not against live in relationship.

Bench stated that the petitioners were of marriageable age and wanted to live in relation, subsequently, they married each other. Court referred to the following Supreme Court decisions:

Hence, in view of the above observations petition was partly allowed. [Chhaya v. State of U.P., Writ C No. 12815 of 2021, decided on 18-06-2021]


Advocates before the Court:

Counsel for Petitioner:- Kuldeep Singh Chahar, Nitin Kumar

Counsel for Respondent :- C.S.C

Case BriefsHigh Courts

Allahabad High Court: Vivek Varma, J., refused to quash a complaint case filed under Section 138 NI Act and directed the trial court to expedite the hearing.

Instant application was filed to quash the proceedings of a Complaint Case under Section 138 of Negotiable Instruments Act, 1881pending in the Court of Metropolitan Magistrate.

Applicant’s Counsel submitted that the cheque in question was not issued against any existing debt or liability and the date of service of notice was not disclosed in the complaint. It was added that until the date of service of notice is not disclosed, the cause of action to initiate the prosecution under Section 138 NI Act will not arise.

Though the AGA appearing for the State submitted that the disclosure of date of service of notice is not mandatory. The said is a matter of evidence and can be seen during the trial.

Analysis, Law and Decision

Bench first referred to Section 138 of NI Act and further, the decision of Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 wherein presumption under Section 144 of the Evidence Act and Section 27 of the General Clauses Act was enunciated.

The above case was followed in the Supreme Court decision of Ajeet Seeds Limited v. K. Gopala Krishnaiah, (2014) 12 SCC 685, wherein it was held that the absence of averments in the complaint about service of notice upon the accused is the matter of evidence.

High Court in view of the above settled legal position stated that the complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to the service of notice on the drawer on a given date.

Though the Bench added that the complaint must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque.

“…factum of disputed service of notice requires adjudication on the basis of evidence. The same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 Cr.P.C.”

Burden of proving that the cheque was issued for debt or liability will also be upon the applicant and can be gone into by the Trial Court.

Pre-trial cannot be held before the actual trial begins. At the stage of summoning, the Magistrate has only to see whether a prime facie case is made out or not.

Therefore, in view of the Supreme court decision and reasons sated above, present application was dismissed.

The complaint case had been pending since 2007 and the as per Negotiable Instruments Act the proceedings under Section 138 NI Act ought to be concluded within 6 months, hence Court directed lower court to expedite the hearing. [Ganesh Babu Gupta v. State of U.P., Application U/S 482No. 4656 of 2021, decided on 7-06-2021]

Appointments & TransfersNews

Appointment of Chief Justice of Allahabad High Court

President appoints Shri Sanjay Yadav, Judge of the Allahabad High Court, to be the Chief Justice of the Allahabad High Court with effect from the date he assumes charge of his office.

Background

Shri Justice Sanjay Yadav, M.A., LL.B, was enrolled as an Advocate on 25-08-1986. He practiced at Jabalpur for 20 years in Civil, Constitutional, Labour and Service matters and has specialized in Labour and Service matters. He worked as Government Advocate from March 1999 to October 2005. He was Deputy Advocate General with effect from October 2005. He was appointed as an Additional Judge of the Madhya Pradesh High Court on March 2, 2007, and as a Permanent Judge on January 15, 2010. Later, he was transferred to Allahabad High Court. He was appointed as Acting Chief Justice of Allahabad High Court w.e.f. 14-4-2021.


Ministry of Law and Justice

[Notification dt. 10-06-2021]

Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamsheri, J., held that satisfaction under Section 19(4)(b) of the Gangs Act is a mandatory requirement for bail.

The instant bail application was presented by the accused for crime under Sections 2/3 of Uttar Pradesh Gangs and Anti-Social Action Activities (Prevention) Act, 1986 [Gang Band Act].

Main function of the gang is committing heinous crime by spreading fear and terror in public for their material benefit against whom no one of the public is ready to report and testify. A number of lawsuits have been registered against them at various police stations. Hence it is absolutely necessary to take action against the gang to control anti-social activities.

Bail

The principle of law is that “bail is the rule and jail is the exception”. Bail can neither be accepted or rejected by any mechanical order, as it not only relates to freedom of the person against whom criminal proceedings are going on, but this punishment is also related to the interest of justice system and also ensure that those who commit crimes are not given the opportunity to obstruct justice.

Bench noted that applicant was a habitual criminal who used to commit same type of crime.

As per Sections 2 (b) and (c) of the “Gangs Act”, the applicant is also a member of a gang which is single or collectively anti-social who commits punishable offenses under Chapter 16 or Chapter 17 or Chapter 22 of the Penal Code, 1860.

Court stated that the crime committed by the applicant was punishable under Chapter 17 of the IPC.

High Court held that applicant had a detailed criminal history and there is no dilemma in reaching the conclusion that he is a habitual criminal.  Therefore, there is no reasonable basis for this Court to be resolved that the applicant is not likely to commit any offense while on bail.

“…the Gang Act is a specific act, in which special provisions related to grant of bail have been made, which are described in section 19 (4) (b). Bail cannot be granted under this Act without complying with those provisions. The Act also clarifies that this provision is in addition to the terms of the grant of bail under the Penal Code, and as previously analyzed the method of bail in which certain persons are allowed while granting or disallowing bail.” 

While concluding, Court held that before granting bail under the Act, two conditions which need to be resolved are absent in the instant case.

Hence, the present bail application was cancelled. [Sabir Khan v. State of U.P., 2021 SCC OnLine All 411, decided on 21-05-2021]

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Sadhna Rani (Thakur), JJ., addressed a matter wherein it was alleged that there is ongoing Black Marketing of Oxygen in Ghaziabad.

Diversion of Oxygen Cylinders

Public Interest Litigation consisted of the allegations filed by a sitting M.L.A with regard to the diversion of oxygen allocated for District Ghaziabad and the resultant death of people in Loni Constituency and Ghaziabad District on account of the shortage of oxygen cylinders.

The allegations were primarily of the involvement of respondent 6 who was posted as Additional District Magistrate in the matter of diversion of oxygen cylinders.

Due to the inaction of Senior Superintendent of Police, Ghaziabad in the present matter, the petitioner has approached the Court.

What the Petitioner seeks?

Petitioner seeks a high-level inquiry regarding the matter of diversion of oxygen cylinders from District Ghaziabad to Delhi and the State of Haryana on account of corrupt practices of respondent 6 who is the in-charge of oxygen distribution in District Ghaziabad and as such he is responsible for black marketing and illegal sale of oxygen to Delhi and Haryana.

CBI inquiry in the said matter has been sought.

Manish Goyal Additional Advocate General assisted by Jai Narayan, Additional Government Advocate, submitted that by an order dated 20-04-2021, regulation of the distribution of oxygen supplies to designated hospitals for COVID positive cases was ordered.

The State quota for oxygen was allocated by the Central Government and the distribution was made by the agencies directly to the designated COVID hospitals.

Further, it was added that no shortage of oxygen supply complaint was made from any of the hospitals and in the Loni constituency, there was only one COVID designated hospital and no complaint from the same was made.

In view of the above discussion, High Court directed that the District Magistrate Ghaziabad shall file an affidavit bringing on record the statement made by him in written instructions sent to Manish Goyal.

Bench also added that inquiry report in the inquiry instituted by him on the allegations made in the complaint dated 1-5-2021 filed by the petitioner shall also be brought on record with the said affidavit

Matter to be posted on 07-06-2021. [Nand Kishore v. State of U.P., 2021 SCC OnLine All 334, decided on 21-05-2021]


Advocates before the Court:

Counsel for the Petitioner: Zaheer Asghar, Ankur Azad, Shashwat Anand

Counsel for the Respondent: G.A., A.S.G.I.

Appointments & TransfersNews

The Supreme Court Collegium has recommended the appointment of Justice Sanjay Yadav as the Chief Justice of Allahabad High Court on 20th May, 2021. Justice Sanjay Yadav had been serving as the Acting Chief Justice after former Chief Justice Govind Mathur demitted office on April 14th, 2021.

Born on June 26, 1959, Justice Yadav enrolled as an Advocate on August 25, 1986. Thereafter, he practised on Civil, Revenue and Constitutional sides in the High Court of Madhya Pradesh at Jabalpur. Subsequently, he was appointed Deputy Advocate General of Madhya Pradesh. 

On March 2, 2007 he was elevated as Judge of the High Court of Madhya Pradesh and Permanent Judge on January 15, 2010. He was appointed as Acting Chief Justice of the Madhya Pradesh High Court with effect from October 06, 2019 till November 02,2019 and from September 30, 2020 till January 02, 2021. On January 08, 2021 he was transferred to Allahabad High Court. 

Hot Off The PressNews

On 5th May, 2021, the Allahabad High Court passed an order by which they preponed the summer vacations of the year 2021 which were due to start on 1st June, 2021 and end on 30th June, 2021. As per the new order No. 5325/XC-3/2021/Admin.(E-1), released on 6th May, 2021 the vacations will now begin from 10th May, 2021 and end on 4th June, 2021.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., addressed an interesting question as to whether the tribunal could due to the prolonged litigation re-decide compensation already awarded in an accident claim or it was to confine itself to the objection raised by the owner of the vehicle, which was a liability to pay compensation.

Background

The facts of the instant case were such that the original claimant who was going on his vehicle at 7.45 a.m and was hit by bus bearing No. DL IP 6567 which was being driven by driver rashly and negligently. The injured was rushed to the hospital where he was treated for injuries received due to an accident. On petition being filed for the claim of compensation, summons were issued to the owner of the bus (owner), namely, Manoj Kumar. The insurance company was permitted to contest the petition under Section 170 of the Motor Vehicles Act, 1988. However, due to the non-appearance of the owner, the matter proceeded ex parte and since the insurance of the vehicle was not proved, an award was passed in the favour of the injured on 27-09-2010.

Subsequent Award granted by the Tribunal

Subsequently, during the execution petition, the owner claimed that his vehicle was insured and the insurer would be liable to satisfy the decree. It was further contended by the owner that the summons never reached him, therefore, ex-parte order against him was liable to be set aside in per Order 9, Rule 13 of CPC. Meanwhile, the injured died out of the injuries sustained due to the accident and medical evidence was also filed by his legal representatives (claimant).

The Tribunal permitted owner to produce documents so as to prove that the vehicle was insured and went to decided the matter afresh. The Tribunal on re-appreciation of evidence opined that the deceased died due to kidney failure and disallowed majority of the claim amount under the head of medical expenses on the ground that the documents were not proved and granted paltry sum of Rs. 1,19,000/- as medical expenses as against more than twenty lacs spent by the claimant by the time award dated 27-09-2010 was pronounced. However, regarding the question of liability to pay compensation, the Tribunal had fastened the insurer with the liability.

Earlier, the Tribunal while deciding the claim petition on 27-09-2010, granted medical expenses which came to Rs. 20,84,750, which was rounded up to Rs. 20,16,500/- and loss of five months’ salary for(163 days), which came to Rs. 63,250/- and Rs. 5,000/- for pain shocks and sufferings.

Whether the tribunal was justified in re-deciding the compensation already awarded?

The Tribunal, in subsequent proceedings, went on to hold that the death was due to dialysis which did not had any causal connection with the accident and reduced the compensation on that ground. This finding could not withstand the judicial scrutiny as it was not within the purview of the tribunal to decide how the claimant died while deciding issue relating to negligence and was beyond the purview of the said issue.

It is settled position of law that the award of the Claims Tribunal shall be paid by owner or driver of the vehicle in the accident and they would be indemnified by insurer. The Tribunal committed a mistake rather irregularity by setting aside the award. The Tribunal further committed an error by re-deciding the compensation. The decree could have been set aside in part namely qua issue of liability as it was a award which could be set aside in part there was definitely severable decree. The Bench opined that, one way for the Tribunal to resolve the controversy and avoid prolonged litigation was to direct the owner to pay the compensation and later on have it indemnified by the insurer, or what could have been done was the Tribunal to decide the matter of liability alone rather that re-fixing the compensation as the Tribunal was not even asked to reconsider the question of quantum and interest.

Do personal right of action abate with the death of the person?

Citing the decision in Madhuben Maheshbhai Patel v. Joseph Francis Mewan, 2014 LawSuit (Guj) 2214, the Bench dealt with the issue of applicability of the maxim “actio personalis moritur cum persona”  which translates to on the death of original claimant, personal right of action abates”, The Bench opined that the said maxim could not be imported to defeat the purpose and object of a social welfare legislation like Motor Vehicles Act.

“Once the status of claimants as legal heirs or legal representatives is conceded and acknowledged, to deny benefit of compensation to them on the ground that injury was personal to the claimant, it will be giving a premium to the wrong doer and it would defeat the very purpose and object of beneficial piece legislation.”

Hence, even after death of injured, claim petition does not abate and the right to sue survives to his heirs and legal representatives.

Verdict of the Court

In case of motor accidents, the endeavour is to put the dependents/ claimants in the pre-accidental position. Considering that the injured which was 38 years at the time of the accident,  suffered 40% permanent disability and was in permanent government service earning a sum of Rs. 11500/- per month and that 15 years had already elapsed and 9 years had elapsed after the death of the claimant, the Bench held his medical expenses as granted by the Tribunal in its order dated 27-09-2010 should be maintained entirely. The additional amount of five months’ salary as actual loss to the estate granted by the Tribunal was also maintained.

Further, an award of a lump-sum amount of two lacs of rupees in addition to the compensation as loss to estate and mental harassment to the legal heirs for protracted litigation was also awarded. Since, the injured had passed away, his family was awarded a further sum of two lacs and fifty thousand for loss to estate and additional sum of Rs 50000 for mental trauma and incidental expenses for looking after the deceased after he suffered the injuries. Conclusively, total compensation for a sum of Rs.24,00,000 was granted to the claimant which was to be paid by the insured. As far as issue of rate of interest was concerned, it was held to be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johat, 2019 (2) T.A.C.705 (S.C.) from the date of the filing of the claim petition till the date of actual deposit.[Satish Chand Sharma v. Manoj Kumar, FAFO No. 3160 of 2018, decided on 26-03-2021]


Kamini Sharma, Editorial Assistant has reported the brief.


Appearance before the Court by:

Counsel for Appellant: Abhishek, Umesh Kumar Singh
Counsel for Respondent: Nishant Mehrotra

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the Allahabad High Court judgment issuing directions for “lockdown” in the State of Uttar Pradesh but has directed that the State Government to “immediately” report to the High Court about the steps it has taken and proposes to take in the immediate future within a period of one week in view of the current pandemic.

The Court has appointed Senior Advocate P.S. Narasimha as Amicus Curiae and has listed the matter after 2 weeks.

Solicitor General Tushar Mehta, appearing for the State had argued before the Court that the State Government has issued several directions to contain the spread of Corona Virus and are taking adequate precautions at their own and that the directions issued by the High Court vide the impugned order are as rigorous as a lockdown though the High Court has observed that “they are nowhere close to a complete lockdown”.

Yesterday, the Allahabad High Court had said that it was their constitutional duty to save innocent people from the pandemic and in order to break the chain of COVID-19 pandemic, people are to be restrained from going outside their homes for a week.

It said that,

“Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people. It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.”

While the High Court said that the directions issued by it were “nowhere close to a complete lockdown”, it remarked,

In this order if we have not imposed a lockdown it does not mean that we do not believe in it. We are still of the view that if we want to break the chain a lockdown for a duration of at least two weeks is a must.”

[State of Uttar Pradesh v. High Court of Judicature at Allahabad, 2021 SCC OnLine SC 336, order dated 20.04.2021]


For Petitioner(s): SG Tushar Mehta, AAG Garima Prashad, Adv. Rajat Nair and AOR Abhinav Agrawal

For Respondent(s): AOR Talha Abdul Rahman

ALSO READ

“Govt. is to blame for chaos; Harsh steps necessary before pandemic spirals to engulf entire population”: All HC orders closing of all establishments (exceptions listed) till 26th April in select districts, asks Govt. to consider complete lockdown for entire State

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Ajit Kumar and Siddhartha Varma, JJ.,  while holding that its’ their constitutional duty to save innocent people from the pandemic and in order to break the chain of COVID-19 pandemic, people are to be restrained from going outside their homes for a week, expressed that:

Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people.

It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.

Recent surge in the COVID-19 pandemic has virtually incapacitated the medical infrastructure in the State of U.P. and especially in cities like Prayagraj, Lucknow, Varanasi, Kanpur and Gorakhpur.

“…pandemic is teasing the system in a situation where patients have outnumbered the hospital beds and people are just running from pillar to post and in this process attendants of patients are not only getting infected but others in public are also getting infected and a complete chain has got formed.”

Court stated that before the pandemic spirals to engulf in it the entire population of these badly hit districts, it is necessary to take some harsh steps in larger public interest.

Further, the Bench remarked that it understands the limitation of the government in creating infrastructure to meet the challenge of COVID-19 and at the moment efforts are afoot to create the same but before all the efforts are translated into action much water would have flown under the bridge to the utter dismay of a large population of have nots.

“…in a democracy there are legitimate expectations from the government to adopt measures to meet public health issues like all other issues of public interest. Public interest expects judiciary to remain vigilant to all the issues which if not addressed to in time, will result in the failure of the system which is meant to safeguard public interest.”

Adding to the above, High Court stated that if people die of pandemic in a large number due to paucity of sufficient medical aid it would be the governments to blame that failed to counter the pandemic even after one long year of experience and learning. One would only laugh at us that we have enough to spend on elections and very little to spend on public health.

Calling early testing scheme or plan a farce, Court elaborated stating that the reports are neither updated before 72 hours nor, samples are taken care of, owing to the shortage of manpower. Only VVIPs have been getting the reports within 6-12 hours.

Economy, economy and economy is the only tune that the government is all the time harping upon, but bread and butter if you take to a person who needs oxygen and medication, it will be of no use to him.

Pomp show of Development

Calling out the Government, Bench expressed that if hospitals’ staff and medicos go ill for the relentless services to cure people in the pandemic, people would start losing their lives and all pomp and show of development would be of no avail.

Looking at the present situation, Court stated that night curfew in the name of Corona Curfew and Weekend Curfew are nothing else but a mere eyewash.

Not being satisfied with the Government efforts, Court stated that people are largely not following the Court’s Order for putting masks on their faces nor, the police could ensure 100% masking till date.

Due to the elections being conducted, police was virtually shifted to polling places giving priority to election above public health.

No Social Distancing

High Court stated that on many occasions in various political rallies masks were never worn by people. In our considered view action is liable to be taken against the organisers who did not anticipate such eventualities under the Uttar Pradesh Public Health Epidemic Diseases Act, 2020 and/ or any other relevant Act in force.

Admission of patients to ICUs have been largely done on the recommendations of VIPs. Even supply of life saving anti-viral drug namely Remdesivir is being provided only on the recommendation of VIPs. VIPs and VVIPs are getting their RT-PCR report within 12 hours, whereas, ordinary citizen is kept waiting for such reports for two to three days and thus, spreading further infection to other members of his/her family.

If popular government has its own political compulsions in not checking public movements during this pandemic, we cannot remain mere passive spectators.

We can’t shirk away from our constitutional duty to save innocent people from the pandemic which is spreading due to the negligence of a few.

Direction passed by the Court:

  • All establishments be it government or private, except financial institutions and financial departments, medical and health services, industrial and scientific establishments, essential services including municipal functions, and public transport, shall remain closed till 26th April, 2021. The judiciary will, however, function on its own discretion;
  • All shopping complexes and malls shall remain closed till 26th April, 2021;
  • All grocery shops and other commercial shops excluding medical shops, with more than three workers, shall remain closed till 26th April, 2021;
  • All hotels, restaurants and even the small eating points on thelas etc. shall remain closed till 26th April, 2021;
  • All institutions like educational institutions and other institutions relating to other disciplines and activities be it government, semi-government or private shall remain closed including for their teachers and instructors and other staff till 26th April, 2021 (this direction is for the whole of Uttar Pradesh);
  • No social functions and gatherings including marriage functions shall be permitted till 26th April, 2021. However, in case of already fixed marriages a necessary further permission would have to be taken from the District Magistrate of the concerned district. Gatherings would be limited to 25 persons and the district magistrate concerned shall take a decision after giving due consideration to the prevailing situation of the impact of Covid 19 including notification of containment zones in the area where such marriage has to take place;
  • All religious activities in public of any kind is directed to remain suspended till 26th April, 2021;
  • All religious establishments of any kind are directed to remain closed till 26th April, 2021;
  • All hawkers including fruits and vegetable vendors, milk vendors and bread vendors, shall go off the road by 11 AM every day till 26th April, 2021;
  • Containment zones shall be notified every day in two leading Hindi and English newspapers having wide circulation in the districts of Prayagraj, Lucknow, Varanasi, Kanpur Nagar/ Dehat and Gorakhpur.
  • All public movements on roads would remain restricted completely, subject to above directions. Movements would be only allowed in case of medical help and emergencies.
  • In addition to the above directions, we direct the State Government to go robust for implementing the current vaccination programme.

Court directed for the order to be sent to Chief Secretary, Government of Uttar Pradesh today to enforce the above directions from the night of 19-04-2021 till 26-04-2021 in the cities of Prayagraj, Lucknow, Varanasi, Kanpur Nagar, and Gorakhpur.

Our above directions are nowhere close to a complete lockdown. 

While concluding the High Court remarked that:

In this order if we have not imposed a lockdown it does not mean that we do not believe in it. We are still of the view that if we want to break the chain a lockdown for a duration of at least two weeks is a must.

 Government shall consider the imposition of a complete lockdown in the entire state.

Matter to be put up again on 26-04-2021. [In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive v. State of U.P., 2021 SCC OnLine All 273, decided on 19-04-2021]

COVID 19Hot Off The PressNews

With the objective to break the COVID-19 infection chain at High Court, Allahabad and at Lucknow Bench, vide resolution dated 19-04-2021 has resolved the following:

  1. High Court and its Office will remain closed on 20.04.2021, 22.04.2021, 23.04.2021 & 24.04.2021. There shall be no physical filing / e-filing on the said dates.
  2. That w.e.f. 26.04.2021 only Urgent Cases will be taken up by the Courts only through virtual mode.
  3. District Magistrate, Prayagraj / Lucknow and the Chief Medical Officer, Prayagraj / Lucknow will ensure arrangement of COVID-19 Medicines and Oxygen Cylinders in adequate number at respective COVID-19 Hospitals at Allahabad / Lucknow.

Link in the NOTIFICATION.


Allahabad High Court

[Notification dt. 19-04-2021]

COVID 19Hot Off The PressNews

In view of the COVID-19 Surge, a Committee for the Purpose of Taking Preventive and Remedial Measures and for Combating the impending threat of COVID-19 vide a resolution dated 07-04-2021:

  • From 12-04-2021, High Court at its judicial side will function by way of hearing through virtual mode only.
  • Initially, 25 Courts will be made functional for hearing through virtual mode. Number of Courts for virtual hearing may increase or decrease as per the existing workload.
  • Case files if required by the Court will be placed even during the virtual mode.
  • Advocates, Litigants-in persons and Clerks will not be allowed in the High Court premises.
  • Filings of cases will be through e-mode and physical form.
  • Staff will be deputed in the front office on rotational basis.
  • 24 x 7 Helpline will be made functional for assisting the advocates with respect to filing, listing and other information related to a case.
  • BSNL to ensure that speed-related issue is resolved so that no obstruction during the virtual hearing is caused.
  • The above-said arrangement will be effective from 12-04-2021.

Link to the notification: NOTICE


Allahabad High Court

[Notice dt. 07-04-2021]

Appointments & TransfersNews

Appointment of Acting Chief Justice of Allahabad High Court

Justice Sanjay Yadav, senior-most Judge of Allahabad High Court, to perform duties of the Chief Justice of that Court with effect from 14-04-2021 consequent upon retirement of Justice Govind Mathur, Chief Justice, Allahabad High Court.


Ministry of Law and Justice

[Notification dt. 09-04-2021]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., while setting aside a decree of divorce addressed the issue of granting maintenance to a widowed wife.

Present application was filed for modification of Court’s earlier order whereby the appellant wife’s appeal against the divorce decree granted to the husband was dismissed as withdrawn.

Factual Matrix

An appeal that was filed in the year 2009 challenged the decree of divorce passed in favour of the respondent-husband. The said appeal was pending for a period of 9 years.

The appeal came up before the Court on 12-04-2018, Court inquired from the appellant and counsel for the respondent-husband as to whether there was any chance of settlement between the parties, to which both parties agreed to live together.

Pursuant to that, both parties resumed cohabitation. The appellant wife requested for withdrawing her appeal as no dispute survived since both parties were now happily living together.

The High Court allowed the withdrawal of appeal, however, without interfering in the decree of divorce already granted in favour of the husband.

Subsequently, the respondent-husband passed away. The appellant wife now claimed maintenance under Hindu Adoption and Maintenance Act as his widowed wife. Consequently, she sought the modification of the Court’s earlier order dismissing her appeal as withdrawn without interfering in the decree of divorce passed by the trial court.

Analysis and Decision

In the present scenarios, except the son and the appellant, there was no one else to claim as the heir of the deceased respondent and hence the only legal heir entitled to inherit the estate of the deceased is the appellant and her son.

During the time period of 20 years of litigation, the wife never sought maintenance but now claimed the same under the Hindu Adoptions and Maintenance Act, 1956.

Bench cited the Supreme Court decision in Rohtas Singh v. Sant Ramendri, (2000) 3 SCC 180 and Swapan Kumar Banerjee v. State of West Bengal, 2019 SCC OnLine SC 1263, with respect to the status of the divorced wife.

High Court held that in view of the above-stated cases, the appellant would be entitled to the maintenance as per the Hindu Adoptions and Maintenance Act, 1956 as she was dependent on the deceased.

The Bench held that it cannot be said that the appellant was a divorced wife. Being a Hindu wife, the appellant has condoned all the misdeeds of the respondent and if her husband did not cohabit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of misdeeds, if any, both by the husband and the wife, the decree is liable to be set aside.

The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned misdeed of the appellant (wife), if any.
According to the Court, a case for setting aside the impugned decree of divorce was made out.

Hence the divorce decree was set aside. The earlier order of the High Court which was sought to be modified was also set aside.[Jyotsna Verma v. Ashok Kumar, First Appeal No. 432 of 2009, decided on 10-03-2021]


Advocates before the Court:

Counsel for Appellant:- In-Person, Ms. Jyotsna Verma (In Person)

Counsel for Respondent:- B. D. Mishra, Syed Fahim Ahmed

Appointments & TransfersNews

President appoints the following ten Judges to be the Permanent Judges of the Allahabad High Court:

  • Ali Zamin
  • Vipin Chandra Dixit
  • Shekhar Kumar Yadav
  • Ravi Nath Tilhari
  • Deepak Verma
  • Gautam Chowdhary
  • Shamim Ahmed
  • Dinesh Pathak
  • Manish Kumar
  • Samit Gopal

Ministry of Law and Justice

[Notification dt. 23-03-2021]

Appointments & TransfersNews

President appoints  7 Additional Judges of the Allahabad High Court.

  • Mohd. Aslam
  • Anil Kumar Ojha
  • Smt. Sadhna Rani (Thakur)
  • Naveen Srivastava
  • Syed Aftab Husain Rizvi
  • Ajai Tyagi
  • Ajai Kumar Srivastava-I

The period of appointment for the above Additional Judges differ.

The appointment of Sadhna Rani (Thakur), Syed Aftab Husain Rizvi and Ajai Kumar Srivastava-I, would be for a period of two years with effect from the date they assume charge of their respective offices.

However, the period of appointment of Mohd. Aslam, Anil Kumar Ojha, Naveen Srivastava, and Ajai Tyagi, would be with effect from the date they assumes charge of their offices till 14th January, 2023, 1st July, 2022, 19th December, 2021 and 31st December, 2022 respectively.


Ministry of Law and Justice

[Notification dt. 22-03-2021]

Case BriefsHigh Courts

Allahabad High Court: Prakash Padia, J., reserved a judgment in a plea which was filed challenging the maintainability of a civil suit pending with respect to land-title dispute in the Kashi Vishwanath-Gyanvapi Masjid case.

It was alleged that the Gyanvapi Masjid was built after demolishing the Kashi Vishwanath temple, the suit was filed by the Temple’s Trust which mentioned that the mosque was built by the remains of the temple. In the instant petition maintainability of the said suit was challenged.

The counsel for the petitioner, Mr SFA Naqvi, assisted by Mr Syed Ahmad Faizan, Mr Punit Gupta, Mr Rahees Ansari, Mr Akhlaq Ahmad, Mr Zaheer Asgar, Ms Poorva Agarwal and Ms Fatma Anjum had argued that the impugned suit was barred by Section 9 as well as Order 7 Rule 11(d) of the Civil Procedure Code, 1908, they further contended that Places of Worship (Special Provisions) Act, 1991 barred filing of suit or any other legal proceedings with respect to conversion of religious character of any place of worship, existing on August 15, 1947.

Counsel for the respondent, Mr Ajay Kumar Singh, Mr Ashish Kumar Singh, Mr Vijay Shankar Rastogi, Mr Sunil Kumar Rastogi, Mr Chandra Shekhar Seth, Mr Tejas Singh, Mr Tarun Tripathi, Mr Amar Nath Tripathi and Mr Vineet Sankalp contended that Section 4(1) and 4(2) of Act No. 42 of 1991 applies only in the case of ‘Undisputed Structure’ and not in case of ‘Disputed Structure’ like the present case, as such it was incumbent upon Trial Court to determine “Religious Character” of the Place in dispute which could have been done only when parties lead evidence according to their respective pleadings. It was further contended that the Bar created under Sections 4(1) and 4(2) of the Act No. 42 of 1991, will not affect present Suit No. 610 of 1991, Section 4(3)(d) of the Act No. 42 of 1991 negatives/ removes aforesaid bar also. Acquiescence or silence about forcible act of Mughal Emperor in demolishing part of the Temple and illegal constructions over part of the Temple, cannot affect the maintainability of present Suit No. 610 of 1991.[Anjuman Intazamia Masazid Varanasi v. Ist A.D.J. Varanasi, Matters under Article 227 No. – 3341 of 2017, order dated 15-03-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., expressed:

“…a party cannot be permitted to blow hot – blow cold, where he knowingly accepts the benefit of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself.”

Petition was filed challenging the impugned orders passed by the Prescribed Authority/Judge Small Causes Courts, Bulandshahar.

Petitioners were the tenants of a shop of which the initially the tenancy was with the grandfather of the petitioners. Later after the demise of grandfather, the legal heirs of the deceased i.e. Jugmandar Das Jain received the shop by means of inheritance.

Thereafter, respondents-landlords initiated the proceedings under Section 21(1)A of Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972  against the legal heir.

Crux of the Petitioners Argument:

If the compromise decree is contrary to statutory provisions, the same is a nullity and cannot be executed.

Analysis, Law and Decision

Original tenant was in possession of a shop 7.0 ft x 23 ft and in the release application filed on the ground f personal need of the family, he agreed to remain in possession of the shop 5.6 ft wide x 12 ft. deep only, which was to be handed over to him by the landlord after the Court Order.

Comprise between the parties reflected that the old rent of Rs 18 per month was to continue. The original tenant had clearly stated that he had only daughters and no son, he, therefore, agreed in the wisdom that he will remain in possession of the shop till his lifetime and thereafter, the tenancy shall not devolve on his legal heirs.

Bench noted that in the terms of compromise, it was clearly stated that there was a clear understanding that neither his daughters nor their husbands shall claim any tenancy over the shop left in possession of Raj Bahadur Jain and shall hand over the possession to the landlord and if they failed to do so, the landlord will be at liberty to take possession through Court.

Petitioners being daughters of the tenant were obviously beneficiary, maybe indirectly, of such compromise as the tenant Raj Bahadur Jain continued in peaceful possession of the said shop till his death as the proceeding of the release application did not proceed further on the basis of such compromise.

For about 16 years, no challenge was raised to the above-mentioned compromise.

“…in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise and that the invalidity on that count can even be raised in execution.” 

Whether petitioner can take shelter from the above law in the present set of facts and circumstances?

Bench opined that a party cannot be permitted blow hot – blow cold, where he knowingly accepts the benefit of a contract or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself.

For the above position of law, Bench referred to the Supreme Court decisions in Rajasthan State Industrial Development and Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470.

Net effect of the Supreme Court decision in Raghunath Prasad Pande v. State of Karnataka, (2018) 5 SCC 594 is that once the compromise decree has been acted upon, a party cannot be permitted to go back from the same and the same is not liable to be set aside.

In the instant case, property was released in part and the old tenant had entered into a compromise. It has been added that he was the sole tenant and had every right to enter into compromise about his tenancy rights. The compromise continued for about 10 years till the death of the tenant Raj Bahadur Jain and they enjoyed the benefits arising out of such compromise.

Since the original tenant remained in possession over the agreed part of the accommodation during his lifetime, now the legal heirs cannot come forward and say that they are a statutory tenant and the said compromise was a nullity as they were not a party or that the same was contrary to law.

With regard to injunction suit, decree of a civil court granting permanent injunction cannot override the proceedings under the provisions of UP Act 13 of 1972 between the landlord and tenant.

Compromise was validly entered between the landlord and the sole tenant, who enjoyed the fruits or the benefits of the same.

Concluding the matter, Bench decided that :

  • Tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2021;
  • Tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of passing of this order
  • Tenant-petitioner shall pay damages at Rs 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount
  • Tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute
  • Tenant-petitioner shall not be evicted from the premises in question till the aforesaid period.

[Anshu Jain v. Suresh Prakash, 2021 SCC OnLine All 217, decided on 10-03-2021]


Advocates before the parties:

Counsel for Petitioner: Nagendra Kumar Srivastava

Counsel for Respondent : Sanjai Srivastava, Ajit Kumar,Vivek Srivastava

Appointments & TransfersNews

Collegium Statement

On 5th March 2021, Supreme Court Collegium approved the proposal for the appointment of the following Additional Judges as Permanent Judges of Allahabad High Court:

  1. Shri Justice Ali Zamin,
  2. Shri Justice Vipin Chandra Dixit,
  3. Shri Justice Shekhar Kumar Yadav,
  4. Shri Justice Ravi Nath Tilhari,
  5. Shri Justice Deepak Verma,
  6. Shri Justice Gautam Chowdhary,
  7. Shri Justice Shamim Ahmed,
  8. Shri Justice Dinesh Pathak,
  9. Shri Justice Manish Kumar, and
  10. Shri Justice Samit Gopal.

Supreme Court of India