Case BriefsTribunals/Commissions/Regulatory Bodies

Rafting per se does not cause any serious pollution of river or environment.

National Green Tribunal (NGT): The Bench of Justice Swatanter Kumar (Chairperson) and M.S. Nambiar (Judicial Member), Dr D.K. Agarwal (Expert Member) and Prof. A.R. Yousuf (Expert Member), allows rafting at Rishikesh but bans camping activity.

Reason for filing the present application

Being aggrieved by the haphazard and unregulated licensing of the river rafting camps operating in river Ganga from Shivpuri to Rishikesh on one hand which is a serious source of pollution of pristine river Ganga on one hand and encroachment and degrading of various areas, on the other hand, the instant application was filed.

The applicant organization has been raising various issues with regard to environmental protection across the country.

Rafting and Camping

In northern India, rafting is commonly exercised on the river Ganges near Rishikesh and the Beas River in Himachal Pradesh. Recent times have witnessed that the said area has been denoted as eco-tourism zone namely Kaudiyala-Tapovan eco-tourism zone where various activities besides rafting and camping have been permitted.

Activities of camping and rafting in a very huge number has caused excessive pressure on the river. On the said sites, either there are no toilet facilities, making people defecate in the open or where they exist they are in the nature of pit disposal.

Causes of Pollution 

During monsoon, the discharge remains to flow into the river, thereby causing pollution and interfering in the river eco-system. The tourists and rafters also throw polythene, wrappers and various kinds of bottles on the sites and on the river bed which ultimately flow into the river. Ganga is also polluted because of high use of detergents, soaps and shampoo.

State Government’s approach is violative of the doctrine of public trust as enunciated by the Supreme Court in the decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 and Centre for Environment Law v. Union of India, (2013) 8 SCC 234.

  • Trees have been cut in the process of encroaching upon the forest area for the purpose of campsites and beach camps.
  • Noise and Air Pollution: Rafting campsites are located upstream and rafters are taken to the campsite in diesel vehicles, creating noise and air pollution.
  • Alcohol along with the food is served by the owners, the leftover of which flows into the river causing pollution.
  • Wildlife is being affected due to the above-stated camps and the increase in man-animal conflict.

Hence, on the applicant’s behalf, it was submitted that since rafting camps are a ‘non-forest activity’, therefore it cannot be carried on without clearance from the competent authority under the Forest (Conservation) Act, 1980.

Mushrooming of rafting camps cannot be termed as a sustainable development activity or a permissible eco-tourism activity.

Analysis and Decision

Following questions fall for determination of the Tribunal:

  1. Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?
  2. Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires approval of the Central Government as contemplated in terms of Section 2 of the Conservation Act?
  3. Whether in the facts and circumstances of the present case, permitting the establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of sub-section (iii) of Section 2 of the Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?
  4. Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) of sub-section 2 of Section 8 of Uttarakhand Tourism Development Board Act, 2001 (for short ‘Act of 2001’) when the field was already covered under the Central legislation, i.e., the Conservation Act?
  5. Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28th August, 1998 issued by MoEF is liable to be quashed?
  6. Whether camping site is a purely commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on the environment in mind and should be barred?
  7. If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?
  8. What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?
  9. What directions should be issued by the Tribunal?

Discussion

Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?

Under Section 14 of the NGT Act, the Tribunal has the jurisdiction to entertain and decide all civil cases where substantial question arises to environment (including enforcement of any legal right relating to environment) is involved and such question arising out of the implementation of the enactments specified in Schedule-I of the NGT Act.

The ‘cause of action first arose’ would have to be understood in reference to continuing cause of action, where the cause of action is recurring and is distinct or is a new cause of action.

Rafting and camping is an activity which has been carried on for years now. Rules were framed in 2014 by the State of Uttarakhand under which permission and licenses for rafting and camping respectively are to be granted.

According to the affidavit filed on behalf of the State, it is an annual feature and permission/license are granted from September to June every year. Thus, every year it is a fresh cause of action.

NGT’s larger bench has already stated that when an application is based on recurring cause of action then fresh cause of action would not be hit by the language of Section 14 of the NGT Act and each fresh event would give a fresh acsue of action and consequently the period of limitation of 6 months.

Applicant claims and has rightly invoked Precautionary Principle in terms of Section 20 of the NGT Act. The Precautionary Principle can be safely applied to protect and prevent the environment and ecology.

Tribunal stated that the issue in the present application was in regard to proper regulation of rafting and camping activity to prevent damage, degradation and pollution being caused in relation to the forest area, river bank and river Ganga. Hence, such an action would not be hit by limitation.

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Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires or not approval of the Centre as contemplated in terms of Section 2 of the Conservation Act?

Whether in the facts and circumstances of the present case, permitting establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of Section 2(iii)  of Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?

In the case of Lafarge Umiam Mining (P). Ltd. v. Union of India, (2011) 7 SCC 338 while referring to Section 2 of the Conservation Act the Supreme Court held that this is how the concept of prior approval from the Central Government comes into picture and thus prior determination of what constitute forest land is required to be done.

The State of Uttarakhand had issued permissions to carry on the non-forest activity in the reserved forest area under the provisions of relevant laws. It had also made a reference to MoEF vide its letter dated 31st July, 1998. This letter was responded by MoEF vide letter dated 24th August, 1998.

MoÉF expressed the view that camps on sandy stretch of river banks for rafting does not fall under the provision of Conservation Act and it is basically an eco tourism activity.

MoEF vide its letter dated 7-10-2014 issued guidelines for diversion of forest land for non-forest purposes or execution of temporary work in the forest land. Vide this letter it clarified that the work which does not involve any tree cutting, is a temporary work and the approval as contemplated under Section 2 of the Conservation Act is not required.

Till 1998 the view of MoEF was that camping should not be permitted in the sandy banks of the river and the forest area. However, the letter dated 28th August, 1998 made some variations.

Tribunal stated that,

“…provisions of Section 2 of the Conservation Act, therefore, must have precedence over any other law for the time being in force in the State of Uttarakhand.”

In the present case, we are primarily concerned with the interpretation of Section 2(ii) and (iii) read with explanation to the section.

Bench observed that ‘Camping Activity’ is an activity which has impacts on environment and ecology and bio-diversity of the river. There are allegations and even records to suggest that number of camping areas have been found to be offending the conditions imposed by the State Government. Cases of breach had been registered against them and in a case even fire-arms were found to be in possession of the visitors coming to these camps.

Further, there are permanent, semi-permanent and temporary structures raised and large scale tenting is done in the river bed. This activity from its nature, substance and actualities extending on the site clearly show that it is a non-forest activity for a non-forest purpose. 

Once it is held that the activity of camping on the forest land or any portion thereof is a non-forest activity and for a non-forest purpose, the provisions of Section 2(ii) of the Conservation Act would be applicable and it would be expected of the State Government to issue permission/order in terms thereof only upon taking approval of the Central Government.

Hence the contention that the said activity is not a non-forest activity could not be accepted.

Whether setting up of rafting camps along the beach of river Ganga and its tributaries qualifies as breaking up of the forest as comprehended under Section 2(ii) of the Conservation Act or not?

The term ‘breaking up’ has to be understood with the object of the Conservation Act in mind.

The instant case cannot be compared to the case of S Jayachandran, Joint Secretary, T.N Greens Movement (supra) rather if the activity of camping is carried on for ten months every year it has certain degree of permanency as understood and digging of the area is carried on. Thus, even according to that judgment, it would be breaking up of the forest area.

Furthermore, this is an act being carried on by the private respondents with the permission of the State and is certainly not an act/purpose of reforestation. Thus, we are unable to accept this contention of the respondent.

Hence for the issues mentioned above, tribunal held that the cases of camping activities in the reserved forest areas are activities which are for non-forest purpose or are non-forest activity in the forest area. These cases would attract the provisions of Section 2(ii) and (iii) of the Conservation Act.

It is obligatory upon the State of Uttarakhand to seek approval at least as a matter of scheme from MoEF and then issue orders/permits in terms of Section 2 of the Forest Conservation Act.

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  • Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) Section 8(2) of Uttarakhand Tourism Development Board Act, 2001 when the field was already covered under the Central legislation, i.e., the Conservation Act?
  • Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28-08-1998 issued by MoEF is liable to be quashed?

Ecotourism is about uniting conservation communities and sustainable travel. It is defined as responsible travel to natural areas that conserves the environment and improves the welfare of the local people.

Examples of negative environmental impacts of tourism to the protected natural areas have been listed as: overcrowding, environmental stress, trail erosion, deterioration of vegetation, noise pollution, contamination of air, water and land, forest fires, wildlife mortality, health hazard, habitat destruction, deforestation, erosion, ecological changes, behavioral changes of animals, groundwater pollution, scarring of landscape, etc.

The provision which empowers the State Government under the Act of 2001 to grant permission for camping activity in the forest area which is a non-forest activity would be ultra vires the provisions of the Conservation Act.

Tribunal in view of the above stated issues held that the MoEF letter dated 28-08-1998 is liable to be quashed the provisions or rules which deal with the implementation and proposal to grant permits for carrying on of camping activity in the forest area are concerned, they are in conflict with the provision of Section 2 of the Conservation Act and hence are ultra virus and cannot be implemented. It is obligatory upon the State of Uttarakhand at best as a matter of policy to seek prior approval of the Central Government before issuance of any permit for said camping activity.

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What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?

Rapid Impact Assessment Report was not found worthy of acceptance by the State of Uttarakhand according to the Inter- Departmental Meeting of the State of Uttarakhand. The said meeting was held as a one day affair in which the team had gone in the river through the motor boat which was not permissible and they had no fair opportunity to examine the sites and offer fair comments. The said contention was not accepted by the tribunal.

The above-stated were verifiable facts and whether the State Government wanted to accept the report or not was a matter, exclusively in the domain of the State Government. But to treat it as an irrelevant document was certainly a mistake, the State Government ought to have considered the report objectively and taken its decision while granting permissions so as to ensure that there was no degradation of environment, biodiversity, ecosystem and particularly the forest area.

Hence, it was observed that the conduct of the State and the private parties are of relevancy in determining the main issue. The Rapid Assessment Report would provide an insight into the working of these camp sites. Undisputedly, there are violations committed by the management as well as the guests at the camp sites.

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  • Whether camping site is a pure commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on environment in mind and should be barred?
  • If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?

It is clear that this eco-tourism activity is completely a commercial activity intended to provide financial benefit to the State and provide employment to the people of the area.

It is true that rafting does not have any adverse impacts on the environment, ecology and river per se but carrying on of camping activity in the forest area does have substantial impacts.

Bench observed that despite the fact that eco-tourism is a commercial activity still it could be permitted, but subject to a strict regulatory regime and its enforcement without default.

Responsibility lies upon the State to protect its environment, forest and rivers.

Camping activity does cause contamination of river and ground water particularly when the activity is not carried on strictly in terms of the regulatory regime in force.

Further it was stated that the camping activity cannot be permitted as a primary activity as it has been there for continued period of 5 years. It is a matter of common knowledge that a person who wish to make investment for a period of 5 years would be having some reluctance not to raise structure of atleast some permanence to give greater comfort, convenience and service to its visitors, though at the cost of adverse impacts upon environment, ecology, river and wildlife.

Thus, it is absolutely essential that a proper stringent Regulatory Regime is placed on record so that such activity can be permitted to continue longer.

Tribunal also noted that the Ganga river from Gaumukh to Rishikesh which few years back was a river of pristine and without any pollution today, because of various factors, of which camping is one, has altered water quality, therefore it is absolutely necessary that a High Powered Committee is constituted.

There has to be very serious supervision with physical inspections at regular intervals by team of high officers of the Forest Department of Uttarakhand and Uttarakhand Environment Protection and Pollution Control Board.

there would be no camping or camping site in the mid of the river or river bed and anywhere within the area which is less than 100 meters measured from the middle of the river upto 2 km beyond boundary of the Rishikesh upstream and not less than 200 meters measured from middle of the river there onwards till boundary of Haridwar downstream.

The concept of ‘Back to Nature’ ought not to be used for developing revenue at the cost of Environment and Ecology.


Directions:

Tribunal passed the following directions in view of the above discussion:

  • No camping activity shall be carried out in the entire belt of Kaudiyala to Rishikesh and the Government would abide by its statement made before the Tribunal on 31st March, 2015. Rafting activity is permitted to be carried with immediate effect.
  • A committee of officers is constituted not below te rand of a Joint Secretary from the Ministry of Environment and Forests and along with a specialist in this from the Ministry.
  • The Rapid Impact Assessment Report shall be treated as a relevant document and the Committee would conduct or get conducted a further survey to satisfy itself.
  • Committee shall consider all aspects of Environment, Wildlife, River and Biodiversity while preparing the relevant regulatory regime.
  • Committee shall give recommendation for all preventive and curative measures and steps that should be taken for ensuring least disturbance to wildlife and least impact on the environment and ecology.
  • After preparation of this report which should be prepared within 3 weeks from the pronouncement of this Judgement, the State of Uttarakhand through Secretary, Forests would submit a Comprehensive Management Plan cum proposal for approval to MoEF. MoEF would consider the same in accordance with law and accord its approval in terms of Section 2 of the Forest Conservation Act.
  • Committee shall ensure that it not only identifies the sites which can be appropriately used for camping activity but also the manner and methodology in which such sites should be put to use for carrying on of these activities.
  • After grant of approval, the State of Uttarakhand shall issue an order under Section 2 of the Forest Conservation Act and give permits in terms of its policy.
  • In terms of revenue and technical aspects, the State is free to take its decisions.
  • Tribunal further directs that if the Committee is of the opinion that rafting stations and number of rafting shafts to be permitted should be more than camp sites, it may so recommend but then, those rafting stations shall be used for very limited purposes of picking up and dropping the visitors without any other infrastructure.
  • local persons should be provided with maximum chances of employment or other financial gains resulting from this Eco-Tourism.
  • Complete prohibition on use of any plastic in the entire belt covered under the present judgement.
  • It shall be obligatory upon every person to whom permit/license for camping is granted by the State to collect the Municipal Solid Waste or all other wastes from the camping site at its own cost and ensure their transport to the identified sites for dumping.
  • No structure of any kind would be permitted to be raised, temporary, semi-permanent or permanent. We make it clear that making of the cemented platforms or bricked walls would not be permitted within the limits aforestated.
  • Committee also has to make this Report in relation to source, quantum of Water and source of Power needed keeping in view the camping activity.

[Social Action for Forest and Environment (Safe) v. Union of India,  2015 SCC OnLine NGT 843, decided on 10-12-2015]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Case BriefsHigh Courts

Calcutta High Court: Debangsu Basak, J., while addressing a matter with regard to defamation, observed that

“in a civil action for defamation, the plea of absolute privilege protects a statement as no action would lie for it, however false and defamatory it may be, even though, it was made maliciously and with an improper motive.”

Plaintiff claimed that the defendant made a statement in an application seeking divorce from his wife which allegedly is defamatory.

Defendant submits that the cause of action of the plaintiff is barred by law.

Further, he states that a civil action for defamation does not lie in respect of a statement made in a pleading filed in a judicial proceeding.

Advocates Dipak Prahladka and Aindrila De appearing for the plaintiff submitted that the plaintiff was married to the elder sister of the defendants’ wife.

Defendant and his wife stayed at a rented flat in Mumbai. After a few months, wife of the defendant left the defendant and came to Allahabad. After a few days, the wife of the defendant along with her mother went to Mumbai where they were informed that the defendant left the flat. Hence they returned to Allahabad.

Defendant after a few weeks filed a petition under Section 11 and 12(1-b) read with Section 12 (1-d) of the Hindu Marriage Act, 1955 before the Family Court, Ranchi praying for an order of decree of declaration of marriage to be null and void.

Later, the wife lodged a complaint against the defendant under Sections 498A, 406, 313, 323, 504, 506 of the Penal Code, 1860 and Section 3 and 4 of the Domestic Violence Act.

Due to the above-said police complaint, family court had issued summons to the plaintiff for settlement of issues in the divorce petition. The divorce petition contained defamatory statements.

Plaintiff advocate submitted that the civil defamation part is yet to be codified.

A statement once made in a pleading filed before a court of law, is a publication of such statement. Such a statement does not enjoy absolute privilege.

Plaintiff sought a decree of Rs 10 crores against the defendant.

The cause of action of the plaintiff was based on the statements claimed to be defamatory in nature, made by the defendant in a proceeding in which the defendant sought a decree of divorce against his wife.

Laws of defamation recognises that statements made in public can be protected from prosecution in a Court of law under certain circumstances. Absolute privilege attaches to public statements made in certain circumstances.

Defamation

In India, defamation gives rise to two types of liabilities — the civil side and one on the criminal side.

On the criminal side, the liability for defamatory statements is governed by Sections 499 and 500 of the Penal Code, 1860. However, there is no statute governing the civil liability of a defamatory statement.

Plea of Absolute Privilege

Further, in a civil action for defamation, the plea of absolute privilege has been held to be a good defence. Absolute privilege protects a statement as no action would lie for it, however false and defamatory it may be, even though, it was made maliciously and with an improper motive.

For the plaintiff’s application claiming that the defendant is guilty of perjury, defendant tendered an unqualified apology for making the wrong statement and the Court accepted the same. [Atul Kumar Pandey v. Kumar Avinash,  2020 SCC OnLine Cal 994, decided on 17-06-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Chandra Singh Samant, J., while addressing a petition made an observation with regard to matrimonial disputes that,

“…in a matrimonial dispute, the cause of action can arise again and again, even if the dispute is settled and compromised before the court and the case has been withdrawn.”

Present matter pertained to the quashing of an order passed by the Family Court, Bilaspur in a Civil Suit.

Petitioners’ counsel submits that respondent had filed a civil suit under Section 9 of the Hindu Marriage Act, 1955 and during the pendency, it was placed before the National Lok Adalat and as the respondent did not want to press on the said proceedings, it was disposed of.

Respondent in the present matter has filed a repeat application under Section 9 of the Hindu Marriage Act. Petitioner challenged the maintainability of the civil suit under Order 7 Rule 11 read with Section 23 Rule 4 of CPC on the ground that the previous application filed by the respondent had been disposed of by award.

Order 23 Rule 4 of CPC specifically provides about the abandonment of a suit under sub-rule 1 without permission of Court.

Further, it has been submitted that Section 21 of the Legal Services Authorities Act, 1987 provides that any award passed in the Lok Adalat shall be final and binding on all the parties and no appeal shall lie to any court against the award, hence in view fo the said the repeat application filed by the respondent stands unsustainable.

Respondent’s Counsel submitted that since the petitioner did not honour the ut of court compromise, respondent was compelled to file an application under Section 9 of the HMA, 1955.

Bench on perusal of the submissions and facts stated that under Section 21 of the Legal Services Authorities Act, 1987, an award of Lok Adalat shall be deemed to be a decree of a civil court which includes the order on compromise or settlement between the parties before the Lok Adalat.

Court stated that Lok Adalat has no authority to exercise the power under Order 23 Rule 1 of CPC. The Lok Adalat on taking cognizance in any matter referred to it from a court, can act only in accordance with Section 20 sub-section 4, 5 & 6 of the Act, 1955 and there is no mention that the Lok Adalat can allow the withdrawal of the civil suit.

Hence the Lok Adalat’s order having lo legality is not an order at all.

“the case of the respondent against the petitioner was terminated on the basis of the statement made by the respondent side, that some agreement has taken place between the parties out of the court.”

Court added that, in a matrimonial dispute, the cause of action can arise again and again, even if the dispute is settled and compromised before the court and the case has been withdrawn.

Therefore,

When a dispute crops up again at any subsequent stage on account of differences between the parties to the matrimony, that would be a separate cause of action, on which the party aggrieved, has an entitlement to maintain legal proceeding under the provision of the Hindu Marriage Act, 1955.

In view of the above, the petition was dismissed. [Harsha Dewani v. Ashutosh Gupta, 2020 SCC OnLine Chh 149, decided on 10-08-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., held that neither the finding of judicial adventurism nor imposing costs of Rs 5 lacs is warranted against INOX Leisure Limited.

Issue

The present appeal was filed to challenge the final Judgment and Order passed on 18th May, 2020 wherein the appellant-plaintiff’s suit was dismissed at the pre-trial stage.

Senior Counsel for the appellant-plaintiff, Amit Sibal submitted that the impugned order had erroneously imposed the cost of Rs 5 Lakhs upon the appellant-plaintiff, even when, concept of tortious inducement/ interference of binding agreements is known to constitute a cause of action to file a suit for injunction.

Further he contended that the Single judge had erroneously held that appellant-plaintiff indulged in ‘judicial adventurism’ inasmuch as the said expression is used in respect of judicial overreach by a judicial authority and same cannot be attributed to a litigant.

He lastly submitted that a coordinate Division Bench of this Court in Amazon Seller Services Pvt. Ltd. v. Modicare Ltd., FAO (OS) No. 135/2019 decided on 31st January, 2020 — held that an action for tortiuous interference is a matter of evidence.

Counsel for the respondent-defendant submitted that appellant-plaintiff by filing the present suit cannot seek waiver of cost as well as expunction of the ‘judicial adventurism’ remark.

Court’s Opinion

High Court stated that no plea of tortiuous inducement/ interference of binding agreement is made out in the present suit, yet the concept was well-known in law to constitute a cause of action to file a suit for damages/injunction.

Thus, agreeing with the decision in Modicare Ltd. v. Gautam Bali, 2019 SCC OnLine Del 10511 Court  held that Single Judge did not dismiss the present suit on the ground of suppression of material facts or on the ground that the appellant-plaintiff had filed parallel or multiple proceedings on the same cause of action.

“..neither the finding of ‘judicial adventurism’ nor the imposition of costs is warranted in the present case.”

Hence, the present appeal and application was disposed in view of the aforesaid modification. [INOX Leisure Ltd. v. PVR Ltd., 2020 SCC OnLine Del 673, decided on 24-06-2020]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. dismissed a petition praying for quashing the criminal proceedings against the petitioner initiated under Section 482 of the Code of Criminal Procedure, 1973 when a simultaneous arbitration proceeding was going on against the petitioner in a civil court.

The petitioner was a surety for one, M.L. George, who had subscribed for four of the respondent company’s chitties and defaulted in paying a certain balance amount. As surety for George, the petitioner was supposed to pay the balance amount to the respondent company on his default. The petitioner failed to pay the amount owed by Mr George to the respondent company and hence a complaint was filed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881.

The counsels for petitioner P.V. Kunhikrishnan and P.V. Anoop contended that the averments in the complaint do not constitute the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Further, it was contended that the initiation of the arbitration proceedings at the instance of the respondent affected the maintainability of the complaint filed against the petitioner for an offence punishable under the Negotiable Instruments Act, 1881.

The Court did not find any merit in the contentions of the petitioner and hence rejected the petitioner’s contentions. Reliance was placed on the case of Sri Krishna Agencies v. State of A.P., (2009) 1 SCC 69 where the Supreme Court, setting aside the order of the High Court for quashing proceedings under Section 138 of the Negotiable Instruments Act, 1881, on the grounds of simultaneous arbitration proceeding, held that disputes to arbitration could not be an effective substitute for a criminal prosecution when the disputed act is an offence. It must, however, be elementary that the two are based on the independent cause of action.

Hence, the Court consequently dismissed the petition and allowed both criminal and civil proceedings simultaneously against the petitioner. [Bindhu A.V. v. Sree Gokulam Chit And Finance Co. (P) Ltd., 2020 SCC OnLine Ker 198, decided on 17-01-2020]

Case BriefsHigh Courts

Kerala High Court: C.S. Dias, J. dismissed a writ petition filed by the petitioner on the basis that once any judgment is in force, a new petition cannot be filed for the same cause of action.

The petitioner had filed another petition before the instant petition, where the Court rendered a judgment, directing the Circle Inspector of Parassala Police Station (Respondent 4) and Sub Inspector of Police, Parassala Police Station (Respondent 5) to render adequate protection to the petitioner. The petitioner here filed a complaint against the harassment done to her by one Prakash (Respondent 6) and one Neetharani (Respondent 7).

The petitioner in this petition alleged that Respondent 6 and The Respondent 7 are still harassing her. The sole reason that the respondents are able to harass her, shows that Respondent 4 and Respondent 5 are not performing their duties. The Court in the last petition directed the circle inspector and the sub-inspector to protect the petitioner from any harassment.

It was held in Commr. Karnataka Housing Board v. Muddaiah, (2007) 7 SCC 689, that once any direction is issued by the Court, the authority is bound to abide by the directions without any reservations. In case, the authorities do not comply with the directions issued or ignore them, then the petitioner can institute contempt of court proceeding. In the case of contempt, the petitioner can not file a fresh suit as the cause of action is the same and the judgment of the previous petition is still in force.

After listening to the contentions of the counsel for the petitioner, K.P. Santhi, and counsel for the respondent, Princy Xavier, Government Pleader, the Court held that this petition is not maintainable as the Judgment of the previous petition is still in force. The Court dismissed the petition and asked the petitioner to seek remedy under Contempt of Courts Act, 1971. [J. Maya v State of Kerala, 2019 SCC OnLine Ker 6025, decided on 31-12-2019]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., dismissed a second appeal filed against the orders of courts below where the suit filed by the respondent-plaintiff for possession of the suit property was decreed.

The plaintiff’s suit was based on his title to the suit property. Plaintiff’s grandfather was the owner of the suit property. According to the request of the defendant’s father, the plaintiff’s grandfather had put him in permissive possession of the property. The same arrangement continued even after the death of both, the plaintiff’s grandfather and the defendant’s father. Now, the plaintiff approached the defendant for evicting the suit property as it was required by the plaintiff’s family. The defendant, however, refused. Consequently, the plaintiff filed the subject suit for possession of the suit property based on his title derived from his grandfather and father.

The defendant contended, inter alia, that the defendants and their predecessor in the title were in possession of the suit property ever since the plaintiff’s grandfather purchased the same and that the suit for possession was clearly barred by the law of limitation.

The High Court was of the view that there was no merit in the defence of limitation. The Court explained: “In a suit for possession based on the plaintiff’s title, the cause of action accrues to him when the defendant sets up a title adverse to him, that is to say, when the possession of the defendant becomes adverse to the plaintiff.”

Considering the facts of the instant case, the Court observed: “It is the plaintiff’s own case here, and which is not disbelieved by either of the courts below, that all along, till possession of the suit property was demanded from the defendants, their possession was permissive, first through the predecessor of the plaintiff (deceased Rama) and later through the plaintiff and his father (also deceased). It was only on 15 May 2006, when possession was demanded by the plaintiff and his father and denied by the defendants that the cause of action to seek recovery of possession on the basis of their title accrued unto the plaintiff and his father and the suit filed immediately thereafter was within time.”

Finding no merit in the challenge to the impugned orders, the High Court dismissed the instant appeal. [Balasaheb Govind Basugade v. Rajendra Shivaji Kumthekar, 2019 SCC OnLine Bom 5608, decided on 28-11-2019]

Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. dismissed the petition since it was devoid of any merits as the petitioner failed to have an enforceable claim.

The petitioner participated in the process of selection as “State Technical Consultant” for Panchayat Yuva Krida Aur Khel Abhiyan (for brevity, PYKKA). The PYKKA contemplated the appointment of a consultant which was to be funded by the Central Government up to a maximum amount of Rs 30,000 per month for a period of five years. The scheme commenced on 6-05-2009. It was contemplated that the appointment of a Technical Consultant on a contractual basis for one year on a consolidated remuneration would be done under the scheme. The renewal of the contract was at the discretion of the Authorities subject to the satisfactory performance of the individual.

The petitioner was selected as Technical Consultant. Certain other persons, who participated in the process of selection, approached the Authorities complaining that they could not appear in the process of selection for want of communication. In the in-house enquiry, it came to light that there was no proper communication, and a fresh process was ordered, due to which selection of the petitioner was cancelled.

In the fresh process, a third candidate was selected. PYKKA, under which the selection has been made is of May, 2009 and was to be funded only for five years thereafter. As per the Scheme, funding lapsed in the year, 2014. Nothing was brought on record to show that it continued thereafter. Even the fresh selections, were initially made for one year subject to renewal upon assessment of satisfactory performance. Petitioner did not place any evidence to prove that the other candidate chosen in his place was still continuing in the position or that the Scheme was continuing after five years. 

The Court held that the pleadings were insufficient with regard to the PYKKA, under which the selection had been done, and thus the petitioner had no valid and enforceable claim. [Gopal Jha v. Union of India, 2019 SCC OnLine Pat 1814, decided on 21-10-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. upheld the order passed by the Rent Controller whereby an appeal was filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, challenging the order whereby an application filed by respondents under Order 22 Rule 3 read with Section 151 of Code of Civil Procedure for impleadment as petitioners/landlords in place of original tenant was dismissed.

Chamba Mal Bhagra, the original tenant, had filed a petition for eviction on two grounds, firstly, that the building had become unfit and unsafe for human habitation and, secondly, that there was an urgent need for rebuilding the same. After his death on 24-10-2018, an application under Order 22 Rule 3 CPC was filed on behalf of his grandsons Vishal Sood and Vikas Sood, on the basis of a Will. In the starting, the aforesaid application was resisted by the tenants on the ground that the said Will was not placed on record, but the impugned referred the document. As per the Will placed on record, the building in dispute was bequeathed in favour of respondents i.e. Vishal Sood and Vikas Sood.

The tenants argued that pleadings to evict the building made by Chamba Mal Bhagra cannot apply anymore as he died during the pendency of the trial. He further argued that in view of the death of the original landlord, an application filed by the applicants/respondents was not maintainable.

The Court heard both the parties and found no illegality or infirmity in the impugned order, and therefore did not interfere with the findings of the Rent Controller. The Court did not consider the arguments put forth by the petitioner because the claim regard to the building being bona fide required for personal use, should have been decided in the main petition and not in the application for impleadment. Moreover, issue with regard to availability of ground if bona fide requirement for personal requirement, after death of original landlord, is no more res Integra in view of the judgment laid down by the Supreme Court in Shakuntala Bai v. Narayan Das, (2004) 5 SCC 772, where it was held that even if landlord dies during pendency of the petition, the eviction notice/order cannot be said to have lapsed. Apart from this, the building was unfit and unsafe for human habitation, and therefore, the Rent Controller below had rightly concluded that cause of action qua aforesaid ground can be inherited by the successors of the original landlord. The petition was dismissed by the Court.[Rikhi Ram Amar Nath v. Vikas Sood, 2019 SCC OnLine HP 1547, decided on 23-09-2019]

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. allowed an application under Order 7 Rule 11 CPC filed by the defendant in the subject partition suit. The said application sought rejection of plaint (partition suit) on two grounds — that the suit lacked cause of action and the suit was time-barred.

The plaintiff was the son of defendant’s deceased brother. The property in question originally belonged to Kundan Lal Kapur, the father of the defendant. The plaintiff had brought a suit for partition of the property. The defendant filed the present application for rejection of the suit. It was proved that the suit property was in occupation and possession of the defendant. It was mutated in his name after the execution of three General Power of Attorneys and relinquishment deeds in his favour by remaining heirs of Kundan Lal Kapur, including plaintiff’s father. Also, the said documents were executed in 1979, i.e., more than 36 years before filing of the partition suit.

The High Court noted that the GPAs and the relinquishment deeds were duly registered under Section 17 of the Registration Act, 1908 with the relevant authorities, and therefore they were not required to be proved by an attesting witness as is evident from Section 68 of the Evidence Act, 1872. It was observed: “under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carries a sanctity in law and are presumed to have been executed.” Further, “The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Evidence Act, 1872.”

Since the GPAs and the relinquishment deeds were all registered documents, the same were presumed to be valid and legal. In these circumstances, the Court held that the plaintiff did not have any cause of action, and his partition suit was therefore rejected. The application of the defendant under Order 7 Rule 11 was allowed.[Rajinder Kumar Kapur v. Madan Mohan Lal Kapur, 2019 SCC OnLine Del 9472, decided on 29-07-2019]

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J. reiterated that once the provision for a “special chance” stood removed from the statutes of Delhi University in 2017, the right of students to attempt papers which they could not clear, beyond the span of period, also stood discontinued.

The petitioner secured her admission in Sri Ram College of Commerce of Delhi University in 2012. In the same year she appeared in the Common Proficiency Test conducted for the Institute of Chartered Accountants of India and secured 14th rank on an all-India basis. She simultaneously continued both courses. As per the petitioner, she had cleared all papers of the B.Com (H) course, except the final semester paper of Business Communications. She approached SRCC in May 2019 seeking permission to attempt the paper, which was denied.

The petitioner, represented by Apoorv Agarwal, Advocate, submitted that her parents were suffering ailments and her brother was blind from birth. She was residing in Ajmer with her family. Owing to such circumstances, she could not come to Delhi to attempt the paper. Per contra, Mohinder J.S. Rupal, Hardik Rupal and Prang Newmai, Advocates for Delhi University; and Aman Rewaria for Amit Bansal, Advocate for SRCC made submissions in support of their decision not to allow the petitioner to appear for the paper.

It is pertinent to note that Ordinance (V) of Delhi University provides for a maximum span of 6 years, from the time of joining of the course by the student, within which she may be allowed to complete the course.

Relying on Avadesh Kumar v. Delhi University, 2016 SCC OnLine Del 1949, the High Court observed: “during the currency of her Chartered Accountancy course, the petitioner herself decided to place her B. Com (H) course on the back burner…Perhaps, the petitioner did so because there was a provision, in the statutes governing the University, at that point of time allowing, to the Academic Council, the latitude of permitting candidates who had crossed the span period, a special chance, to appear in papers which remained to be attempted by them. The said provision, however, admittedly stood removed from the statutes governing the University in 2017.”

Holding that a writ petition cannot be founded on the ground of sympathy, and nor a judicial order can be based on such consideration alone, the High Court dismissed the appeal. [Aruvita Mishra v. Delhi University, 2019 SCC OnLine Del 7985, decided on 09-04-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.J. Shastri, J. dismissed a petition being devoid of merit as the case did not fall in any of the parameters of Section 115 of Code of Civil Procedure which would permit the Court to exercise the discretion provided under it.

In the present Civil Revision Application, the common judgment of the Principal Senior Civil Judge was challenged. The original suit was filed for seeking dissolution of partnership and for the purpose of accounts and for its share to be distributed and also for an interim injunction where the contentions put forth by the respondents was rejected. The present petitioners being aggrieved of the order contended the partnership in question itself, that not only some of the partners but also their nominees have passed away. Therefore, there remains no cause of action to continue the suit or claim and also the plaint itself is barred by law of limitation. And that the partnership deed has not been operated or continued after the year 1985. Mr Vimal Purohit, learned advocate appearing on behalf of contesting respondents had submitted that if a true construction of partnership is seen from the clauses contained in the partnership deed, a dissolution can never be inferred from 1985. He further submitted that the contract is clearly indicating that partnership can continue even after the death of a partner by inserting nominees as partners. Also, contended that even cause of action is also clearly spelled out in the plaint itself and from the bare averments made in the plaint. To substantiate further two cases were relied upon, Khushal Khemgar Shah v. Khorshed Banu Dadiba Boatwalla, (1970) 1 SCC 415 and Kodendera K. Uthaiaha v. P.M. Medappa, (2017) 16 SCC 331.

The Court while referring to the cases cited, held that, the scope analysed by the Hon’ble Court on the exercise of jurisdiction is aptly propounded in the decisions. The Court further opined that, “first of all the order impugned in the revision application is not possible to be construed as perverse in any manner particularly in view of the fact that contentions which have been raised have been dealt with properly by the learned trial judge and additionally the proposition of law laid down by series of decisions have also been taken note of”. And this case does not fall in any of the parameters required for exercising jurisdiction under Section 115 of CPC.  The revision application being devoid of merit was thus dismissed.[Ramankant Nanalal Jasani v. Sureshchadra Amrutlal Jasani, 2019 SCC OnLine Guj 582, Order dated 11-03-2019]

Case BriefsHigh Courts

Delhi High Court: Vinod Goel, J. dismissed a petition impugning the order passed by Civil Judge whereby defendant’s application under Order 7 Rule 11 CPC.

The plaintiff filed a recovery suit against the defendant (petitioner) on account of selling them wooden furniture. The suit was instituted in Delhi as the plaintiff was carrying on his business of manufacturing and selling wooden items in Delhi. The defendant filed an application under Order 7 Rule 11 for rejection of plaint, on the ground that the contract between the parties was entered into at Udaipur. They pleaded that the cause of action accrued at Udaipur and therefore courts in Delhi had no jurisdiction to try the suit. However, their application was rejected by the Civil Judge. Aggrieved thereby, the defendants filed the present petition.

While holding that the petition was liable to be rejected, the High Court observed, “It is a well-settled principle of law that while deciding an application under Order 7 Rule 11 CPC, the averments made in the plaint are germane and plea taken by the defendant in the written statement would be wholly irrelevant at that stage”. Reliance was placed on Chhotaben v. Kirtibhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422; Ramesh B. Desai v. Bipin Vadilal Mehta(2006) 5 SCC 638 and Salem Bhai v. State of Maharashtra, (2003) 1 SCC 557. It was noted that the plaintiff had averred in the plaint that the defendant approached him for supply wooden furniture at his office in Delhi. In reference to this, the Court stated, “pleadings of the respondent unambiguously indicate that a part of cause of action has accrued within the local limits of Delhi which certainly provides privilege to the respondent to file the suit in the Courts of Delhi.” It was further observed that determination of jurisdiction is a mixed question of law and facts, which can be adjudicated only after the parties adduce their evidence. In such view of the matter, the Court dismissed the petition. [Hansa Place Art Furnitures (P) Ltd. v. Dilip Kumar Sharma, 2019 SCC OnLine Del 7422, dated 25-02-2019]

Case BriefsForeign Courts

High Court of South Africa, Western Cape Division: In this case before a Single Judge Bench of K M Savage, J., defendant had raised an exception to the particulars of claim of plaintiff that the particulars failed to show cause of action.

Plaintiff and defendant had entered into a written master sale agreement incorporating a number of conditions of sale. The reason why defendant alleged no cause of action was that no agreement existed since plaintiff failed to confirm the verbal order in writing due to which defendant was not obligated to confirm the purchase price of the goods. Thus, the defendant could have repudiated the agreement and sell the goods to a third party. Whereas plaintiff submitted that the defendant had failed o discharge the onus to show the absence of cause of action in the particulars of claim.

High Court referred the case of Trustees, Bus Industry Restructuring Fund v. Break Through Investments CC, 2008 (1) SA 67 (SCA) where it was made clear that it is for the excipient to show that the plaintiff’s claim is bad in law which defendant failed to show. The Court was satisfied that the plaintiff had disclosed cause of action and therefore, the exception raised cannot succeed. [Gelvenor Consolidated Fabrics (Pty) Ltd. v. Winelands Textiles (Pty) Ltd., Case no. 5010 of 2018, decided on 06-11-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Prabhat Kumar Jha, J. while hearing a civil writ petition held that in an application for probate of will, cause of action accrues from the date when hindrance is put to legatee in the management of property bequeathed by will and not immediately after the death of propounder of will.

Petitioner’s case is that the respondent was given in adoption by his father to his father’s eldest brother. After the demise of petitioner’s father, respondent filed a probate case and thereafter petitioner filed a petition under Order VII Rule 11 (d) of CPC and Article 137 of the Limitation Act, 1963 which was dismissed by the lower court holding that respondent’s probate case was not barred as limitation would not start from the date of death of testator. Being aggrieved, the instant petition was filed.

The sole question for determination was as to whether filing of probate case three years after the death of testator was barred under Article 137 of the Limitation Act.

The Court observed that under Article 137 of Limitation Act, the period of limitation is three years from the date and the said period begins to run when the right to apply accrues. Relying on the dictum of  Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 it was held that an application for probate of will is for the court’s permission to perform a legal duty created by a will and is a continuous right which can be exercised any time after the death of deceased, as long as the right to do so survives. As such, the probate case of respondent was maintainable.

In view of the above, the petition was dismissed.[Arun Kumar Agrawal v. Anil Agrawal, 2018 SCC OnLine Pat 2070, decided on 28-09-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. dismissed an appeal filed against the judgment of the Division Bench of the Madras High Court whereby it held it had no jurisdiction to adjudicate the dispute in question.

In short, the real essence of the dispute was that the plaintiffs, resident nationals of Dubai, had filed a derivative action on behalf of a company incorporated in Dubai. They held 34% shareholding in the said company, whereas the defendants held 66% of the shares. The defendants also held around 6.16% shares in Star Health and Allied Insurance Co. Ltd., a company incorporated in Chennai, India. According to the plaintiffs, these shares actually belonged to the company registered in Dubai mentioned above. Since Star Health was incorporated in Chennai, the plaintiffs instituted a suit in Madras High Court to protect an declare the beneficial interest of the Dubai company in the said 6.16% shares. A Single Judge of the High Court admitted the suit; however, on appeal by the defendants, the Division Bench held that it had no territorial jurisdiction to adjudicate in the matter. Aggrieved thus, the plaintiffs filed the instant appeal.

On perusal of the facts, the Supreme Court noted that the plaintiffs made certain averments to the said Dubai Company being the real owners of the shares held by the defendants in the Indian Company, which was denied by the defendants. In reality, it was a dispute between the plaintiffs and defendants, all of who were residents of Dubai. Even the company whose beneficial interest was claimed was incorporated in Dubai. The Court held inter alia, that merely because the dispute is about shares issued by an Indian Company would not lead to the conclusion that cause of action has arisen in India. As a consequence, the Madras High Court has no territorial jurisdiction to adjudicate the matter. Accordingly, the judgment impugned was upheld and the appeal was dismissed. [Ahmed Abdulla Ahmed Al Ghurair v. Star Health and Allied Insurance Company Ltd.,2018 SCC OnLine SC 2554, decided on 26-11-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before a Single Judge Bench of Rajbir Sehrawat, J., in order to quash an FIR registered under Sections 120-B, 406, 420 of Penal Code and other subsequent proceedings arising therefrom.

Facts of the case were such that petitioner wanted to receive distributorship from “Bombay Dyeing” from alleged and was assured of the same but since the alleged refused, petitioner filed a complaint about cheating against the alleged. Petitioner was charged for conspiring under the registered FIR. It was contended by petitioner that Section 138 of Negotiable Instruments Act and Sections 420, 406 of IPC are mutually exclusive thus if the complaint has been filed under Section 138 then FIR under Sections 420 and 406 of Penal Code cannot be lodged for the same cause of action and hence liable to be quashed.

High Court stated that there is no such concept as “same cause of action” or “cause of action” in criminal jurisprudence. Once material against petitioner was found for involvement in a conspiracy then per se FIR cannot be quashed. On the contention of the offences being mutually exclusive, the court was of the view that an accused is liable to be punished from the stage of an attempt to commission of the offence and various offences like this can be charged together. It was discussed that Section 138 has a limited scope of trial and punishment for the offence and if the plea of the offences being exclusive to each other is taken then that would mean that other offences not covered under Section 138 cannot be filed. The Court found no application of Section 300 of Criminal procedure code and Article 20 of the Constitution of India. Therefore, the petition was dismissed as no ground to quash the FIR was found. [Sazid Khan v. State of Haryana,2018 SCC OnLine P&H 1733, decided on 27-07-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. allowed an appeal filed against the order of the trial court whereby the appellant’s plaint was rejected under Order VII Rule 11 CPC.

The appellant had brought a suit against the respondent for recovery of a certain amount. The trial court rejected his plaint mainly on the ground that the respondent was making payments during pendency of the suit, therefore, the amount as claimed by the appellant had vanished. In such circumstance, trial court held that the cause of action did not survive. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, on perusal of the record, was of the view that the trial court completely erred in rejecting the appellant’s plaint. It was observed that during pendency of a suit, a defendant may always keep on making payments towards the amount claimed in the suit; however, that does not mean that the cause of action in the suit will vanish. In such circumstances, it was furtehr observed, the Court under Order VII Rule 11 will take notice of the subsequent event of repayments and will amend the suit amount and will decree the suit for lesser amount after making necessary adjustments. In view of the aforementioned, the High Court set aside the order impugned and directed the trial court to hear and decide the suit in accordance with law. [ICICI Bank Ltd. v. Vikas Kumar Thakur, RFA No. 901 of 2018, decided on 01-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, J. while hearing an appeal against the order of a Single judge held that denial of pension benefits to a person residing in a particular State, vests him with the locus standi to file the writ petition challenging such denial in that State.

The appellant, who worked in the Assam Rifles in Shillong, was discharged from service on medical grounds which entitled him to disability pension. However, when he was not sanctioned full pension, he made a representation to competent officials but the same was rejected. The appellant submitted that after he was discharged from service, he had no financial resources to continue to live in Meghalaya and therefore he was constrained to come to Kerala.

The only issue involved in the matter was as to whether this Court had territorial jurisdiction to entertain the appellant’s writ petition.

Relying on the dictum of  Apex Court in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, the  High Court observed that when a party residing within the jurisdiction of a court was denied the benefit of pension by an authority, a part of cause action could be said to have arisen within the jurisdiction of that Court. It is settled law that under Article 226 of the Constitution of India, writ jurisdiction can be exercised by any High Court, if any part of the cause of action, wholly or in part, arises within its territorial limits.

The Court noted that the request for disability pension was made from Kerala and its rejection was communicated to the petitioner in Kerala. Thus, the appeal was allowed holding that this Court was vested with territorial jurisdiction to entertain the present matter. [K.T. Sudharshanan v. Union of India,2018 SCC OnLine Ker 4003, decided on 28-09-2018]