Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. dismissed the instant writ petition where the petitioner sought mandamus to command respondent not to demolish the construction of his residential house.

The disputed facts were that the constructed house of the petitioner was part of Gaon Sabha earlier. Subsequently, the land came under jurisdiction of Nagar Panchayat, and thereafter the petitioner received a notice under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, to which he replied and ultimately the Prescribed Authority found the petitioner to be in unauthorized occupation and passed an order for his eviction. The order was challenged by the petitioner in an appeal before the District Judge, Haridwar.

Therefore the appeal of the petitioner was allowed by District Judge merely on technical grounds such as that the notice which was given to the petitioner under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants), 1972 did not elaborate or disclose the land. The trial court also gave finding in favor of the petitioner that the Additional Sub Divisional Magistrate who had passed the eviction order was not the Prescribed Authority and all the proceedings were beyond his jurisdiction.

The Court observed that the order passed earlier was not on the merits of the case hence the rights were not determined. Hence the petitioner was eventually asked to vacate the land which was disputed, aggrieved by which he filed the writ.

Tapan Singh, counsel for the petitioner submitted that there was already a judicial determination in the favour of the petitioner, as to his rights on the land and the fresh notices for eviction and demolition were alleged to be illegal. They basically relied upon the judgment passed by the District Judge.

The Court in such circumstances observed that, in the earlier case, the appeal of the petitioner was allowed on a technicality, such as the validity of the notice and the jurisdiction of the authority. There was no determination on the merit of the case. Hence the new proceedings were therefore not barred. But further, it stated that relief sought by the petitioner was out of the purview of the Court by the way of writ and thus the petitioner was directed to apply to a competent Civil Court.[Mansab Ali v. Nagar Panchayat Landhaura, WP (M/S) No. 3364 of 2016, decided on 05-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: Justice Manmohan Singh (Chairman), dismissed an appeal filed by a company challenging a show-cause notice for retention of its property, on the ground that no hardship was caused to the appellant-company by the impugned notice.

In the present case, FIR was registered by CBI against Videocon International Electronics Limited under Sections 120-B and 420 of Penal Code, 1860 and Sections 7 and 13(2) of Prevention of Corruption Act, 1988. It is pertinent to note that appellant’s name was not mentioned in the said FIR. An Enforcement Case Information Report (ECIR) was recorded, but appellant was not even supplied a copy of that report. Search was conducted by Enforcement Directorate (ED) at the appellant’s offices and various documents were seized without even mentioning what those files pertained to. An application was filed by the ED under Section 17(4) of the Prevention of Money Laundering Act, 2002 seeking retention of the seized property. The said application was allowed by the Adjudicating Authority, and appellant was served a show-cause notice under Section 8(1) PMLA seeking his reply as to sources of procurement of property seized. Aggrieved by the said order, the instant appeal was filed.

Learned counsels Vinit Virmani and  R.K. Gosain appearing on behalf of the appellant, submitted that the impugned notice was issued on the basis of reason to believe and there was non-application of mind because the Authority did not even peruse the report of records seized. Further, the details of seizure documents were not in the manner prescribed. Since a proper list of documents had not been supplied to the appellant, it was not even aware of the contents of seized documents. It was further contended that the name of the appellant was not even mentioned in the FIR. Lastly, the seizure memo prepared was contrary to Rule 3(3)(A) of PMLA (Restoration of Property) Rules read with Rule 5 of PMLA (Forms, Search & Seizure, Etc.) Rules, 2005.

Counsels for the respondent, Nitesh Rana and A.R. Aditya, submitted that the appeal filed was not maintainable. They argued that before issuing the notice, if there are certain mistakes and defects or omissions, the notice already issued cannot be declared invalid at this stage, under Section 68 of PMLA. It was contended that the Adjudicating Authority did not pass an order, but had merely issued a show-cause notice. An appeal can be filed under Section 26(1) PMLA before this Tribunal only against an order of the Adjudicating Authority which has been passed under Section 8(4) of PMLA. Further, if an appeal is allowed against every procedural act of the Adjudicating Authority, as is the case of appellant, it would lead to multiplicity of proceedings. Respondent’s counsels admitted that a thirty-day notice, as mandated under Section 8 PMLA, was not given prior to issuance of show-cause notice. But he submitted that it was a curable defect under Section 68 PMLA, and that appellant could still be given 30 days to file a reply to the notice.

The Tribunal placed reliance on Farida Begum Biswas v. UOI, 2015 SCC OnLine Del 11834 where it was held that “Any person aggrieved by an order made by the Adjudicating Authority under Section 8 of PMLA can avail the remedy of appeal under Section 26 of PMLA to the Appellate Tribunal” It was opined that an appeal under Section 26 PMLA may or may not be maintainable. An appeal before PMLA may be maintainable in exceptional circumstances such as great hardship being caused to a party, abuse of the law, injustice, irreparable loss and great prejudice to party concerned. Thus, maintainability as an issue could only be decided on the facts and circumstances of each case.

It was noted that in the present case, the respondent had merely seized two files containing papers, and the appellants were entitled to receive copies of the same under Section 21(2) PMLA at the appropriate time. Therefore, no hardship was being caused to the appellant if the objections raised by it would be decided by the Adjudicating Authority within a time-bound manner. Moreover, appellant always had the remedy to challenge the Authority’s order in appeal after the retention order under Section 17(4) PMLA is passed.

In view of the above, the present appeal was dismissed.[Pacific Capital Services (P) Ltd v. Deputy Director, Directorate of Enforcement, Mumbai, FPA-PMLA-3043/MUM/2019, decided on 30-05-2019]

Hot Off The PressNews

As reported by TOI, London High Court allows tycoon Vijay Mallya to appeal against his extradition order as no prima facie case is made out against him.

Of the five arguments made by Mallya’s lawyer, judges accepted only one — that no prima facie case of fraud and money laundering was made out against the Vijay Mallya.

Background:

A Single Judge Bench comprising of Senior District Judge (the Chief Magistrate) Emma Arbuthnot accepted the Government of India’s (GoI) extradition request for tycoon Vijay Mallya to face trial on charges of fraud and money laundering.

The Court considered the vast evidence placed on record by GoI and relying on the case of Devani v. Republic of Kenya, [2015] EWHC 3535 opined that there was a prima facie case that the funds loaned by Indian banks to Mallya were misused. A number of email trails were relied on to rule that he had misrepresented his net worth to the banks.

It was further held that there was a prima facie case of a conspiracy to defraud which involved not just the Kingfisher Airlines executives but also some bankers. There was clear evidence of misapplication of loan funds and thus there was a prima facie case of conspiracy to launder money was found against Mallya. [Govt. of India v. Vijay Mallya, decided on 10-12-2018]

Also Read:

Sajid Javid the UK Home Secretary signed the extradition order of Vijay Mallya on 04-02-2019.


[Source: ToI]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Arvind Singh Sangwan, J. allowed the application for the refund of the fees on the ground that the matter was resolved between the parties.

An appeal was filed by the appellant-plaintiff against the order passed by the Additional Civil Judge (Senior Division), Faridabad where the suit for specific performance filed by the appellant was dismissed.

Rakesh Kumar Sharma, counsel for the applicant/appellant submitted that the appellant does not wish to pursue the appeal which was filed for the specific performance as the dispute between the parties had been resolved amicably.The applicant/appellant further prayed for the refund of the court fee.  Reliance was placed upon the decision of Division Bench of the Karnataka High Court in the case of A. Sreeramaiah v. South Indian Bank Ltd., 2006 SCC Online Kar 563 in which it was held that the matter being resolved by the parties amicably, amongst themselves without the intervention of the court, the court fees should be refunded.

In the above-mentioned case, the court held that the object behind Section 89 of the Civil Procedure Code, 1908 is to encourage the parties to arrive at the settlement. It is not important that the parties are referred to the four methods but if parties themselves at the earliest stage before the court come to the settlement, it will be considered that the object of Section 89 is achieved. The court further held that “No party should be discriminated in the matter of refund of Court Fees mainly on the ground that they have settled the dispute at the earliest stage before the court without recourse to any of the methods mentioned under Section 89 of the Civil Procedure Code, 1908.” Thus, the court directed the refund of the court fees appended with the appeal to the appellant. [Suresh Kumar Gupta v. State of Punjab, 2019 SCC OnLine P&H 660, decided on 30-5-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J. dismissed an application seeking leave to appeal against an Assistant Sessions Judge’s order of acquittal, holding that the forum for preferring such an appeal would be the Court of Sessions Judge and not the High Court. 

The petitioner (herein) in the instant case alleged before the trial court that the accused persons had forcefully kidnapped his daughter while she was returning from college. She was also kept confined by them. As a result, the petitioner registered complaint under Section 366 read with Section 34 of Penal Code, 1860. Learned Assistant Sessions Judge acquitted all the accused persons. Aggrieved by this order of acquittal the petitioner preferred the present application under Section 378(3) of Code of Criminal Procedure, 1973 seeking leave to file an appeal against the acquittal order.

The counsel for the petitioner, A.T. Sarkar, placed reliance upon the decision rendered in Satyapal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613, while preferring appeal under 378(3) of CrPC. He contended, “even though the victim has a right to prefer an appeal against the order of acquittal u/s 372 CrPC but same can be filed only after obtaining leave of the Court as required under sub-section 3 of Section 378 CrPC.” 

The Court after perusing the legal provisions and pronouncements observed, “it appears that there is a confusion in the mind of the petitioner that he has to seek for leave to prefer the appeal in view of the decision in Satypal Singh case.” It was further observed, “As the appeal sought to be preferred against the order of the learned Assistant Sessions Judge so the appeal will lie to the Court of learned Sessions Judge.” Thus, the Court taking into consideration the bona fide nature of application by quoting the provision under Section 378(3) of CrPC, opined that the petitioner was not debarred to prefer the appeal to which he was entitled under the statute. The Court held, “the petitioner herein being the informant has a right to prefer an appeal u/s 372 (proviso) CrPC and he being the informant in the GR Case he cannot be equated as complainant within the purview of Section 378 (3) of CrPC and no leave is required to prefer such appeal.”

In light of the above, the Court dismissed the instant appeal but granted him liberty to prefer an appeal in the Court of concerned Sessions Judge.[Akhtar Mirza v. State of Assam, 2019 SCC OnLine Gau 2295, decided on 14-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT), Mumbai : The Bench of Tarun Agarwala, J. (Presiding Officer) and C.K.G. Nair (Member) and M.T. Joshi, J., (Judicial Member) allowed the appeal filed questioning the veracity and legality of the order passed by the Disciplinary Action Committee of the National Stock Exchange of India Limited by which the appellant who is a broker was expelled from the membership of the NSE.

The appellant filed a review application on 27-02-108, and the review application was rejected. Prakash Shah, the counsel for the appellant, had put forward Clause 17 of the NSE Rules which provides a provision for reconsideration/review of its orders. It states that “according to the provisions of the Securities Contracts (Regulation) Rules, 1957 the relevant authority may of its own motion or on appeal by the trading member concerned within 90 days from the date of communication of decision of the relevant authority to the member reconsider and may rescind, revoke or modify its resolution… In a like manner, the relevant authority may rescind, revoke or modify its resolution expelling or suspending any trading member.” The applicant further stated that two boxes were placed before the DAC. In one box it was written ‘Review Rejected’ and in the other box it was written ‘Review Accepted’. The DAC ticked the box which contained the message ‘Review Rejected’ without any application of mind.

The Tribunal held that review application was required to be dealt after giving an opportunity of hearing to the appellant which in the instant case was not done. It was also opined that a reasoned and speaking order should have been passed by the DAC. There was a total absence of expression or opinion giving reasons for rejecting the review application. The impugned order was, thus, violative of Article 14 of the Constitution of India and cannot be sustained. The Tribunal quashed the review order and remitted the matter again to the DAC to decide the review application afresh after giving an opportunity of hearing the applicant. The appeal was thus allowed. [CPR Capital Services Ltd. v. NSE Ltd., 2019 SCC OnLine SAT 27, decided on 09-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a revision petition and set aside the order of the Appellate Court whereby it had dismissed the appeal filed by the petitioner (husband) on the ground that he failed to deposit the entire arrears of maintenance despite several opportunities.

The husband was directed by the trial court to pay a monthly maintenance amount of Rs 35,000 to his wife. He, however, failed to pay the amount and coercive steps were taken by the trial court. Challenging the said order, the husband filed an appeal before the Appellate Court which was dismissed by the impugned order.

Mani Mittal and Pratush Mittal, Advocates, appeared for the husband before the High Court. Per contra, the wife was represented by Bharti Sharma and S.K. Sharma, Advocates.

The High Court noted that the difference of opinions on the subject — as was evident from the decisions rendered by Single Judges in Rajeev Preenja v. Sarika, 2009 SCC OnLine Del 458 — attained finality by a decision of the Division Bench in Sabina Sahdev v. Vidur Sahdev, 2018 SCC OnLine Del 9747. In Sabina Sahdev Case, it was held that “appeal or revision cannot be dismissed solely on the ground of failure to pre-deposit the maintenance amount and the same would have been decided on merits.” Accordingly, the Court held in the present case that the Appellate Court took a contrary view which was not sustainable. Therefore, the impugned order was set aside and the appeal was restored to its original number. [Sourav Sharma v. Neetu Sharma, 2019 SCC OnLine Del 8480, decided on 14-05-2019]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Bench of Lady Hale, President and Lord Reed, Deputy President and Lord Carnwath, Lord Llyoyd-Jones and Lady Arden allowed an appeal filed against the Judgment of Northern Ireland Court of Appeal concerning a stay granted on the proceedings for a claim of damages under Section 8 of the Human Rights Act, 1998.

The appellant’s son, Pearse Jordan, was shot and killed by a member of Royal Ulster Constabulary in November, 1992. His father, Hugh Jordan, made an application to the European Court of Human Rights complaining that the failure to carry out a prompt and effective investigation into his son’s death. He sought a declaration that the Coroner and Police Service of Northern  Ireland had been responsible for delay in the commencement of the inquest in violation of his rights under Article 2 of the European Convention on Human Rights together with awards of damages under Article 8 of the Human Rights Act. Subsequently, the proceedings were taken over by his wife, the appellant, following his deteriorating health.

The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what has come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment, Hughes’ Application for Judicial Review, In re, [2018] NIQB 30, Sir Paul Girvan found that there was a systematic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved.

The Court Appeal, after considering the provisions of the Human Rights Act, laid down a general rule that claims of the present kind could not be brought before the conclusion of an inquest, and that any claims which had been brought before that stage should be stayed until then. This was, however, clarified by the Court of Appeal in a subsequent decision in McCord’s Application for Judicial review, In re, unreported, 18-1-2019, which judgment appears to confine the general rule prescribed in the present case to those cases where the only outstanding issue is damages and where an inquest can be expected to begin within the near future, if not already underway.

The present appeal was brought against the Judgment of the Court of Appeal staying the proceedings brought by Hugh Jordan until the completion of inquest. The Supreme Court was of the view that the appeal ought to be allowed. It was discussed that a stay on proceedings can be ordered in appropriate circumstances even n cases brought by persons claiming a violation of their Convention rights, however, regard must be had to three important aspects of the Convention rights:

(a) Rights that are practical and effective: Convention rights must be applied in a way which renders them practical and effective, not theoretical and illusory. The effectiveness of the right under article 2 to have an investigation into a death begin promptly and proceed with reasonable expedition could be gravely weakened if there were a general practice of staying proceedings seeking to secure the prompt holding of an inquest, typically by obtaining a mandatory order or a declaration.

(b) Determination within a reasonable time: The staying of proceedings will be unlawful if it results in a breach of the “reasonable time” guarantee in Article 6 of the Convention. That would be a real possibility in some cases if stays until after the completion of an inquest were ordered as a general rule. That right under Article 6 is distinct from Article 2.

(c) Proportionality of restrictions on access to the Courts: Since a stay of proceedings prevents a claim from being pursued so long as it remains in place, it engages another aspect of Article 6 of the Convention, namely the guarantee of an effective right of access to a court. That exercise requires consideration of the circumstances of the individual case before the court.

The Supreme Court observed: “There is no doubt that there may be cases in which it is proportionate to impose a stay on a claim for damages in a legacy case, weighing the relevant factors for and against it. There is equally no doubt that there may be cases in which, weighing those factors, a stay is not proportionate. Since the relevant factors can differ in nature and weight from one case to another, it follows that courts should carry out the necessary balancing exercise in the individual case. A virtually automatic rule requiring all such claims to be stayed until after the inquest, regardless of their individual circumstances, would not comply with that requirement, and in addition, as previously explained, would result in breaches of the reasonable time requirement of Article 6.”

It was held that the decision of the Court of Appeal was not consistent with the foregoing principles. It did not involve an assessment of proportionality. It was also stated that it is uncertain whether the court would have ordered the stay if such an assessment had been conducted, particularly if Hugh Jordan’s ill health had been drawn to its attention. In such circumstances, the appeal was allowed. [Hugh Jordan’s Application for Judicial Review, In re, [2019] UKSC 9, dated 06-03-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Surya Kant, C.J. and Sandeep Sharma, J. disposed of a petition with a direction to Debts Recovery Tribunal (DRT-I) to supply a copy of the order so as to enable the petitioner to file an appeal before Debts Recovery Appellate Tribunal (DRAT).

In the present case the grievance of the petitioner was that the copy of the order dated 20-04-2019 by the Debts Recovery Tribunal-I, Chandigarh was not supplied to the petitioner where the same was appealable. But since the copy was not provided, therefore no appeal could be filed unless a copy of the order is supplied.

The Court considering the situation of the petitioner sympathetically allowed the petitioner to move an application before DRT-I within a day or a two with a prayer to order status quo ante for a period of ten days so as to enable him to file an appeal before DRAT meanwhile.[Shivalik Fibres (P) Ltd. v. Punjab National Bank, 2019 SCC OnLine HP 543, decided on 24-04-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: The Bench of Gulzar Ahmed,  Faisal Arab and Ijaz UL Ahsan, JJ., dismissed the petition filed against a Judgment of the Lahore High Court through which the appeal filed by the petitioner regarding the termination of his services was dismissed.

The facts of the case were that the petitioner was appointed as an ECG Technician in District Headquarters Hospital, Rawalpindi in 2005 on a contract basis. In 2009, his services were terminated. He challenged his termination through a representation which was not decided. He, therefore, approached the High Court in its constitutional jurisdiction. The High Court directed the respondents to decide the petitioner’s representation. This was dismissed by the departmental authority. The petitioner challenged the said order which was allowed. The respondents, feeling aggrieved, challenged the said judgment through two separate Intra Court Appeals which were allowed; the above facts raised the current contention. The Counsel for the petitioner, Sardar Abdul Raziq Khan and Syed Rafaqat Hussain Shah submitted that the Division Bench of the High Court fell in error in reversing the findings of the Single Judge in a mechanical manner, ICA filed by the Rawalpindi Medical College , which was neither a party to the proceedings nor directly aggrieved of the order, was not competent and the ICA filed by the Government of Punjab was barred by time and the Division Bench erred in law in entertaining the appeals. The respondents defended this by raising the point of law that if two appeals against the same impugned judgment are filed, one of which is within time, the other appeal should also be entertained and decided on merit rather than being dismissed on technical grounds.

The Court held that the appeal filed by the RMC was within time and even if the appeal filed by the Government of Punjab was barred by time, the Division Bench had a legal basis and lawful justification to entertain and decide both appeals on merits. Further, the Court found that the order of petitioner’s appointment was void and no period of limitation runs against a void order. The second issue that was considered was that the dispute between the parties related to contract employment. The Court stated that it is settled law that a contract employee is debarred from approaching the High Court in its constitutional jurisdiction. The only remedy available to a contract employee is to file a suit for damages alleging breach of contract or failure to extend the contract. Therefore, it was held that the petitioner approached the wrong forum in the first place and the Single Judge had exceeded his jurisdiction by interfering in a purely contractual matter. The appeal was thus dismissed. [Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital, 2019 SCC OnLine Pak SC 3, Order dated 06-03-2019]

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J., quashed the trial court’s Judgment convicting the applicant herein for the offences punishable under Sections 279 (rash driving or riding on a public way) and 304-A (causing death by negligence) IPC. The order of the Ad-hoc Additional Sessions Judge was also set aside whereby he confirmed the trial court’s Judgment.

As per the prosecution, the applicant, a driver with Maharashtra State Road Transport Corporation, was driving the offending bus which knocked down a 6-year old girl. The incident was reported, and the applicant was tried and convicted as aforesaid. He challenged his conviction but the appeal was dismissed by the Ad-hoc Additional Sessions Judge. Aggrieved thereby, the applicant filed the present revision application. His defence throughout was that he was not driving the offending bus at the time of the incident.

The High Court stated: “It was open for the prosecution to obtain the relevant record from the depot to which the applicant was attached, to show that at the relevant time the applicant was driving the offending vehicle. Further, it was obligatory on the part of the prosecution to prove those documents. In the present case, that has not been done. On the contrary, the learned lower appellate Court, it appears that, dismissed the appeal on the basis of unproved documents.” In the Court’s opinion, the evidence available was not sufficient to conclusively prove that the applicant was driving the offending bus. He was found entitled to benefit of doubt. Resultantly, the Court quashed his conviction and also set aside the First Appellate Court’s order mentioned above. [Sudhir v. State of Maharashtra, 2019 SCC OnLine Bom 558, decided on 02-04-2019]

Case BriefsSupreme Court

Supreme Court: Reminding the Courts of the scope of their powers, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ has said:

“While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.”

Background of the case:

  • An Inspector of Police and Sub-­inspector of Police were prosecuted for commission of the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act.
  • On charge­sheet being filed by the State Prosecuting Agency against the respondents after obtaining necessary sanction as required in law, both of them filed applications under Section 227 of the Cr.P.C. in the Court of Special Judge and Chief Judicial Magistrate.
  • The Chief Judicial Magistrate allowed the applications and discharged them from the case.
  • State approached the High Court and the High Court dismissed the revisions and affirmed the order of the Chief Judicial Magistrate, giving rise to filing of these appeals by the State by way of special leave in this Court.

When the matter reached Supreme Court, it had to decide whether the Courts below were   justified in allowing the discharge applications filed by the respondents under Section 227 of the Cr. P.C. Stating that the Court the High Court acted like an Appellate Court than as a Revisionary Court as if it was hearing the appeal against the final verdict of the Special Court, the Court said:

“consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the Appellate Court is another thing.”

The Court, hence, set aside the impugned order, dismissed the applications filed by the respondents under Section 227 of the Cr.P.C. and remanded the case to the Special Judge/CJM for its trial on merits in accordance with law.

[State v. J. Doraiswamy, 2019 SCC OnLine SC 338, decided on 07.03.2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Dinesh Mehta and Sangeet Lodha, JJ. dismissed the appeal filed against the order passed by the Single Judge of the Court whereby writ petition preferred by the writ-petitioner/appellant seeking a direction to respondents to rectify the inventory after an inordinate delay of 54 years was dismissed on the ground of delay and laches.

The appeal was barred by limitation for 11 days. The only reason assigned for condonation of delay in filing the appeal was that due to the ongoing vacation of ‘Navratri’, and non-availability of counsel in Jodhpur, appellant could not give instructions for filing of appeal.

The Court held that the reason assigned for not filing the appeal within limitation, could hardly be considered a sufficient cause and, therefore, the application under Section 5 of the Limitation Act seeking condonation of delay, should to be rejected. [Jagmal Singh v. State of Rajasthan, 2019 SCC OnLine Raj 164, Order dated 21-02-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Gita Mittal, CJ and Tashi Rabstan, J. allowed the application filed for seeking suspension of the sentence imposed upon the applicant on the ground that there was no chance of the appeal being heard in the near future.

The facts of the case are that the applicant was booked for the commission of offence under Sections 302/34 RPC and Sections 4/25 of Arms Act. The appellant was convicted for the same by the Trial Court. The order noted that the applicant/appellant had roots in society; his brother was serving in the Indian Army and that the family would facilitate the applicant/appellant in conforming to the societal norms if his sentence was suspended. However, taking into consideration the apprehensions expressed on behalf of the complainant the Court suspended the sentence of applicant/appellant for a period of five weeks to evaluate the conduct of the applicant/appellant while set at liberty. No complaint of any misbehavior was recorded after his release.

The Court while relying on the case of Akhtari Bi v. State of M.P., (2001) 4 SCC 355, upheld that if the appeal is pending for five years and there is no chance of an appeal being heard in near future then in such a case the applicant/appellant should be enlarged on bail. [Naresh Kumar v. State, 2019 SCC OnLine J&K 80, Order dated 29-01-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J. allowed the application filed for challenging the order of the District Court whereunder the appellate court rejected the application of the petitioner-appellant under Order 41 Rule 27 CPC to admit five documents as additional evidence.

The facts of the case are that plaintiff-petitioner instituted a Civil Suit praying for damages. The suit was dismissed. The application under Order 41 Rule 27 CPC to admit five documents as additional evidence was filed during pendency of the appeal. The respondents-opposite parties objected to the same. The appellate court rejected the application. Mr. Prasanna Kumar Parhi, counsel for the petitioner submitted that the appellate court was not justified in rejecting the said application before hearing of the appeal.

The Court relying on the case of Sankar Pradhan v. Premananda Pradhan, 2015 (II) CLR 583 held that the legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.” The petition was thus allowed. [Gopal Krushna Panda v. Utkal Grameen Bank, 2019 SCC OnLine Ori 34, Order dated 28-01-2019]

Case BriefsForeign Courts

Sri Lanka Court of Appeal: This appeal was filed before a 2-Judge Bench comprising of A.H.M.D. Nawaz and E.A.G.R. Amarasekara, JJ.

Facts of the case were such that District Judge dismissed the plaintiff’s action on the premise that the plaintiff’s action was barred by the law of res judicata. Plaintiff had instituted this action seeking a declaration of title to the land and ejectment of defendant therefrom. Defendant contended that plaintiff had filed two actions on the same cause of action which were dismissed and thus the action before the district court was res judicata. It was submitted that the relationship between the plaintiff and defendant of licensor and licensee had already been terminated in the previous action and accordingly was decided against plaintiff against which he did not prefer an appeal thus, he could not file this action to terminate the relationship again.

Court of Appeal was of the view that one of the actions filed by plaintiff was wrongly decided but since there was no appeal filed against it, the purported cause of action in the present case becomes res judicata. The Court also noted that it cannot suo motu act in a revision to change the judgment wrongly decided since it dated back to 1997. Therefore, this appeal was dismissed. [Jalin Pedi Durayalage Manuel v. R.W. Pina, C.A. 425 of 2000 (F), decided on 14-12-2018]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed a writ petition challenging the order passed by the Additional District Judge, whereby the Appellate Court had dismissed the application under Section 5 of the Limitation Act for condonation of delay. 

The petitioners were aggrieved by this order and their counsel Mr Prasanna Ku. Parhi, contended that the delay was justified and the petitioners were prevented by sufficient cause in not filing the appeal on time and the Appellate Court had dismissed the same on an untenable and unsupportable ground. 

The seminal question that hinged for consideration was that whether an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was a decree or order. 

The Court placing reliance on the case of Fakira Mishra v. Biswanath Mishra, 2015 SCC OnLine Ori 313, held that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. [Jitendra Naik v. Radhyashyam Naik, 2018 SCC OnLine Ori 432, dated 10-12-2018]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing an original petition in a debt recovery matter ruled that where a Tribunal exercises its jurisdiction over more than one State, then the High Court in the State where the first court is located has supervisory jurisdiction over the said Tribunal.

In a recovery proceeding filed by the respondent bank, petitioner purchased a secured asset brought for sale by the bank. Defaulting borrowers filed an application before Debts Recovery Tribunal (DRT), Ernakulam which set aside the sale in favour of petitioner. Aggrieved thereby, bank filed an appeal before Debts Recovery Appellate Tribunal (DRAT), Chennai wherein the petitioner pleaded that he had parted with his money and purchased the property on bank officials’ assurance. But since the property was now entangled in legal proceedings, he did not wish to contest the proceedings and wanted his money back with interest and damages. In this backdrop, the present petition was filed seeking a direction to DRAT, Chennai for early disposal of the appeal.

The respondent bank raised an objection as to maintainability of the petition in view of territorial jurisdiction. Thus, the question for Court’s consideration was as to whether it could assume supervisory jurisdiction over DRAT, Chennai.

Relying on the dictum of Apex Court in Ambica Industries v. CCE, (2007) 6 SCC 769 it was held that when the High Court exercises its jurisdiction over a Tribunal extending its jurisdiction over more than one State, then the High Court in the State where the first court is located would be the proper forum. In the instant case, the primary forum was DRT, Ernakulam and as such the High Court could eminently exercise its supervisory jurisdiction over DRAT, Chennai.

The petition was allowed directing DRAT to dispose of the appeal within three months.[Thomas Chacko v. Bank of India,2018 SCC OnLine Ker 4915, decided on 01-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of V. Chitambaresh, Satish Ninan, JJ., dismissed an appeal filed against the order of the lower court, whereby the award of arbitrator passed in an arbitration between the parties was decreed by the lower court.

The main issue that arose before the Court was whether the lower court was justified in passing a decree in furtherance of the award passed by the arbitrator.

The Court observed that the arbitrator had held the appellants liable for the delay caused in the completion of work as given under the contract between the parties. No material was produced before the Court or the arbitrator to prove that the delay which was caused can be attributed to the respondent contractor. Although it was an accepted fact that the arbitrator was supposed to carry out works beyond the expiry of contract but that was supposed to be done only on revised rates. The arbitrator had passed the award only after a careful consideration of the facts and circumstances which clearly show that the delay in completion of work was solely attributable to the appellants. Further, the respondent had sought damages for idling of men and machinery, which were duly given to him under the award passed by the arbitrator.

The Court held that in a case where the appellant fails to establish any fault on the part of the respondent in completing the work under contract, within a stipulated period, then the appeal for setting aside the award cannot be held maintainable. Resultantly, the Court dismissed the appeal and affirmed the order of the lower court.[State of Kerala v. Indiramma Shanmughavilasom Veedu, 2018 SCC OnLine Ker 4636, order dated 02-11-2018]