competitive exam
Case BriefsHigh Courts

   

Delhi High Court: In a suit for permanent injunction and damages for infringement of marks, passing off and unfair competition in relation to the mark ‘DAWAT/DAWAAT’, the Single Judge Bench of Prathiba M. Singh, J. awarded Rs. 25 lakhs as damages and costs in favour of the plaintiff and held that the defendant was manufacturing and selling counterfeit ‘DAAWAT’ branded products with dishonest intention.

Facts of the Case

The plaintiff was engaged in the business of processing, marketing, and exporting food products including rice and had a strong distribution network in all major Basmati Rice consuming cities in India and in foreign countries including USA, Canada, UK, and EU. Some of the well-known brands used by the plaintiff were HERITAGE, DAWAT, DAAWAT, DAAWAT DEVAYA, DAAWAT BESTOW, ORANGE, DEVAAYA, CHEF’s SECRET, SONA, ROYAL, etc. The present suit was related to the trade marks ‘DAWAT/DAAWAT’ which were used in respect of rice and were registered in both word mark and device mark since 1987.

Submissions on behalf of the Plaintiff

It was contended that the defendant was selling, storing, and distributing counterfeit ‘DAAWAT’ branded products, and the plaintiff came to know about this in 2021 when they purchased the defendant’s product. Upon examination, it was revealed that even though the product claimed to be Basmati Rice, it was Jawaphool Rice and did not match the standards of Basmati Rice, which was of high quality. Moreover, the same was being branded as Basmati Rice and sold in ‘DAAWAT CHED’s SECRET BASMATI RICE’ branded product packaging and the packaging of the product of the defendant was identical to the product of the plaintiff.

Analysis, Law, and Decision

On 7-9-2021, an ex-parte ad interim injunction was passed, and a Local Commissioner was appointed to visit the premises of the defendant and prepare an inventory of the infringing goods. The report and images produced by the Local Commissioner revealed that a total of 89 packets of distinct types of rice, bearing the mark ‘DAAWAT’ were found in the defendant’s premises, proving that the defendant’s product packaging was nothing but a counterfeiting packaging of the plaintiff’s ‘DAAWAT’ products.

The Court opined that the defendant was clearly indulging in violation of the plaintiff’s statutory and common law rights in the marks ‘DAWAT/DAAWAT’. Moreover, the product involved was rice for human consumption, therefore, the misrepresentation by the defendant that its product was Basmati Rice, was also impermissible.

The Court stated that the report by the Local Commissioner could be read into evidence under Order XXVI Rule 10(2) of Civil Procedure Code, 1908 (CPC). The Court relied on M.L. Brother LLP v. Mahesh Kumar Bhrualal Tanna, 2022 SCC OnLine Del 1452, wherein it was held by this Court that “Order XXVI Rule 10(2) CPC stipulates that the report of the Commissioner and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the record”.

After taking into consideration the report of the Local Commissioner, the evidence which was collected by the Local Commissioner and the non-filing of the written statement by the defendants, the Court opined that the no ex-parte evidence was required in this case.

On the relief of costs and damages, the Court held that defendant’s counterfeiting was contrary to law and was diluting the reputation and goodwill of the plaintiff’s marks. Moreover, after considering the amount of seizure made, the nature of the counterfeiting indulged into by the defendant, the costs incurred by the plaintiff for executing the local commission and the court fees deposited, it was clear that the plaintiff’s mark and business had been diluted due to infringing use. Therefore, the Court decreed the suit for a sum of Rs. 25,00,000 towards damages and costs.

[LT Foods Limited v. Saraswati Trading Company, 2022 SCC OnLine Del 3694, decided on 11-11-2022]


Advocate who appeared in this case:

For the Plaintiff(s): Advocate R. Abhishek.

SCC Part
Cases ReportedSupreme Court Cases

   

Arbitration and Conciliation Act, 1996 — S. 17 — Interim measures — Termination of lease: Interim direction by arbitrator to lessee to deposit rental amount for period of : (a) complete closure, and (b) partial closure of the premises run as a restaurant and bar, during COVID-19 Lockdown, by applying force majeure principle contained in agreement. Arbitrator however not even expressing prima facie opinion on applicability of force majeure principle contained in agreement, which was not proper. [Evergreen Land Mark (P) Ltd. v. John Tinson & Co. (P) Ltd., (2022) 7 SCC 757]

Arbitration and Conciliation Act, 1996 — Ss. 11 and 8: Non-consideration of allegation of insufficient stamping of agreement comprising arbitration clause as a ground to refuse appointment of arbitrator i.e. a deadwood issue, explained. Exception against the norm of non-adjudication of issue of arbitrability of dispute at the stage of Ss. 8 and 11 i.e. the exception of a clear case of deadwood, when applicable, explained. Non-payment and insufficiency of stamp duty cases, distinguished. [Intercontinental Hotels Group (India) (P) Ltd. v. Waterline Hotels (P) Ltd., (2022) 7 SCC 662]

Arbitration and Conciliation Act, 1996 — Ss. 34, 32 and 33: Award rendered by deceased arbitrator, whether incomplete, warranting appointment of fresh arbitrator, determined. Plea for fresh appointment of arbitrator vis-à-vis issues contended to have not been adjudicated by deceased arbitrator, if tenable. [India Power Corpn. Ltd. v. Eastern Coalfields Ltd., (2022) 7 SCC 768]

Civil Procedure Code, 1908 — Or. 14 R. 2 — Preliminary issues — What are — Issues when may be framed and tried as preliminary issues: Preliminary issues can be those where no evidence is required. Thus, for instance, on basis of reading of plaint or applicable law, if jurisdiction of court or bar to suit is made out, court may decide such issues with sole objective for expeditious decision. Or. 14 R. 2 has a salutary object in mind that mandates court to pronounce judgments on all issues subject to provisions of Or. 14 R. 2(2). However, in case where issues of both law and fact arise in the same suit and court is of the opinion that case or any part thereof may be disposed of on an issue of law only, it may try those issue(s) first, if they relate to jurisdiction of court or a bar to suit created by any law for time being in force. It is only in those circumstances that findings on other issues can be deferred. [Sathyanath v. Sarojamani, (2022) 7 SCC 644]

Civil Procedure Code, 1908 — S. 96 — First appeal — Scope: Duty of first appellate court, principles summarized. [Ramnath Exports (P) Ltd. v. Vinita Mehta, (2022) 7 SCC 678]

Consumer Protection — Services — Medical practitioners/services/Medical negligence — Negligence in performing services: Relevance of Report of Ethics Committee of Medical Council of India, in proving negligence/deficiency of service, explained. [Harnek Singh v. Gurmit Singh, (2022) 7 SCC 685]

Land Acquisition Act, 1894 — Ss. 23 and 4 — Compensation: Sale instances which were in respect of individual plots of land being much smaller in comparison to land acquired, whether may be relied on, principles summarized. [Union of India v. Premlata, (2022) 7 SCC 745]

Legal Services Authorities Act, 1987 — Ss. 22-C and 22-D: Conciliation proceedings under S. 22-C is mandatory when Permanent Lok Adalat decides a dispute on its merits. Even if opposite party does not appear, Permanent Lok Adalat is still bound to follow step-by-step procedure laid down by S. 22-C. Jurisdiction and adjudicatory functions of Permanent Lok Adalat, explained in detail. [Canara Bank v. G.S. Jayarama, (2022) 7 SCC 776]

Motor Vehicles Act, 1988 — S. 166 — Permanent disability — Compensation — Determination: In this case, victim aged about 5 yrs, rendered paraplegic due to the accident, having suffered several injuries. He was not able to move both his legs and had complete sensory loss in legs, urinary incontinence and bowel constipation and bed sores. Loss of future earnings/future prospects, attendant requirement, assistant device, taxi/conveyance expenses, medical expenses, loss of marriage prospects, pain, suffering and loss of amenities considered while determining compensation. Compensation under separate head “food and nourishment or towards loss of childhood”, not granted. [Ayush v. Reliance General Insurance Co. Ltd., (2022) 7 SCC 738]

Penal Code, 1860 — S. 120-B — Criminal conspiracy: Ingredients and standard of proof for conviction under S. 120-B, principles summarized. [Desh Deepak Kumar Vihangam v. State of Bihar, (2022) 7 SCC 721]

Penal Code, 1860 — Ss. 302/120-B and 342/120-B: Conspiracy and membership of appellant in conspiracy to rob and murder shop-owner rich in cash and gold from money-lending business, instigated by his employee along with other co-accused, including appellant, whether proved, determined. [Harpal Singh v. State of Punjab, (2022) 7 SCC 697]

Real Estate (Regulation and Development) Act, 2016 — S. 18 — Remedies available to allottee under: Principles as clarified in Imperia Structures, (2020) 10 SCC 783, affirmed and applied. [Imperia Structure Ltd. v. Harit Pant, (2022) 7 SCC 703]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24(2) — Lapse of acquisition under — Requirements of: Effect of interim order(s) of court, clarified. Time during which interim order(s) of court operated, held, must be excluded while determining whether acquisition proceedings lapsed under S. 24(2) of the 2013 Act. [Agricultural Produce Marketing Committee v. State of Karnataka, (2022) 7 SCC 796]

Service Law — Departmental Enquiry — Enquiry procedure — Examination of witnesses: In this case, three vital witnesses were not examined, despite opportunity being granted by appellate authority by passing order of remand. Hence, held, no interference with impugned judgment affirming order of Single Judge setting aside penalty imposed on ground that charges against respondent delinquent were not proved and directing payment of entire arrears of salary with consequential benefits within stipulated time, from date of removal till date of reinstatement called for. [Union of India v. Suresh Kumar Singh, (2022) 7 SCC 675]

Service Law — Retirement/Superannuation — Retiral benefits: For benefit of enhanced age of superannuation on grounds of parity and entitlement to consequential monetary benefits, “no work, no pay” principle, whether applicable, explained. [Jacob Thudipara v. State of M.P., (2022) 7 SCC 764]

Service Law — Transfer of Employee/Service — Deputation — Deputation or transfer — Determination of: Posting of R-1 Assistant Engineer, appointed in SADA on 24-6-1982 to Gwalior Development Authority (GDA) vide Order dt. 20-12-1988, tenability of reliance on S. 72 of the 1973 Act to contend that R-1 was sent on deputation, determined. [Gwalior Development Authority v. Subhash Saxena, (2022) 7 SCC 706]

Transfer of Property Act, 1882 — S. 53-A: In this case, in a suit for permanent injunction, plaintiffs claimed to be in possession and for declaration and permanent injunction as such invoked S. 53-A TPA. Validity of rejection of plaint on ground that suit barred by limitation and that suit for declaration simpliciter under S. 53-A TPA is not maintainable against original owner, determined. Relevance of interconnectedness of reliefs sought in the plaint, explained. [Biswanath Banik v. Sulanga Bose, (2022) 7 SCC 731]

SCC Part
Cases ReportedSupreme Court Cases

   

Army Act, 1950 — Ss. 125, 126, 69, 3(ii) and 70 — Criminal trial — Concurrent jurisdiction of court martial under Army Act and criminal courts under CrPC: When Designated Officer/Commanding Officer impliedly declined to exercise discretion to conduct trial in court martial. Trial by criminal court under CrPC, held, mandatory. In a case of concurrent jurisdiction, when court martial has impliedly declined to conduct trial, criminal court cannot direct the court martial to do the same. [State of Sikkim v. Jasbir Singh, (2022) 7 SCC 287]

Civil Procedure Code, 1908 — Or. 41 R. 27 — Admissibility of additional evidence in appellate court not adduced in the court of original jurisdiction: Admissibility of additional evidence under Or. 41 R. 27 CPC does not depend upon the relevancy of the issue on hand, or whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. That is, whether such additional evidence has a direct bearing on pronouncement of the judgment. [Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247]

Constitution of India — Arts. 21, 32 and 226 — Constitutional/Public Law Torts/Public Safety — Violation of life and personal liberty: Where life and personal liberty have been violated, absence of any applicable statutory provision(s) for compensation is of no consequence. Right to life guaranteed under Art. 21 is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of any statutory provision as such for preserving that right. Thus, a writ petition seeking compensation is maintainable. Furthermore, Art. 21 has to be read into all public safety statutes, since prime object of public safety legislation is to protect individual and to compensate him for loss suffered. Duty of care expected from State or its officials functioning under public safety legislation is very high. [Sanjay Gupta v. State of U.P., (2022) 7 SCC 203]

Constitution of India — Arts. 300-A and 226 — Right to property: Deprivation of property can only be permitted when and to the extent it is strictly in compliance with applicable law. Land reserved for public purpose under Town Planning law. Lapse of acquisition due to inaction of executive to acquire land within prescribed statutory time period cannot be interfered with by Court contrary to scheme of the applicable statute. [Laxmikant v. State of Maharashtra, (2022) 7 SCC 252]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions: In this case, directions were issued to implement roster point-based reservation for preferential candidates as followed by JIPMER in all AIIMS institutes. However, roster points need not be similar to that of JIPMER. This order directed to be applicable for admission from year 2022. Students Assn. [AIIMS v. AIIMS, (2022) 7 SCC 201]

Insolvency and Bankruptcy Code, 2016 — Ss. 8, 9, 5(20), 5(21), 3(6) and 3(12) — Procurer/purchaser of services/goods from corporate debtor by rendering advance payments to it — Consideration of, as operational creditor: Debt arising from a contract in relation to supply of goods/services by corporate debtor amounts to “operational debt”. [Consolidated Construction Consortium Ltd. v. Hitro Energy Solutions (P) Ltd., (2022) 7 SCC 164]

Land Acquisition Act, 1894 — S. 23 — Compensation awarded in another proceeding: Extent to which compensation awarded in another proceeding may be relied on, all relevant factors and necessity of consideration of it, explained. [LAO v. N. Savitha, (2022) 7 SCC 256]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 35 r/w Ss. 13(2), 13(4) and 2(1)(zc) to (zf) — Dues of secured creditor, priority of, over dues of Central Excise Department: Dues of secured creditor over the properties of assessee have priority over dues of Central Excise Department. Prior to insertion of S. 11-E of the Central Excise Act, 1944 there was no provision in the 1944 Act inter alia providing for first charge on the property of the assessee or any person under the 1944 Act. Further, S. 35 of the SARFAESI Act inter alia provides that the provisions of the SARFAESI Act shall have overriding effect on all other laws. Also, even the provisions contained in S. 11-E of the Central Excise Act are subject to the provisions contained in the SARFAESI Act. [Punjab National Bank v. Union of India, (2022) 7 SCC 260]

Madhya Pradesh High Court
Case BriefsHigh Courts

   

Madhya Pradesh High Court: Dwarka Dhish Bansal, J., while dismissing a second appeal held that in presence of prior execution of agreement of Gift, the Will becomes a suspicious document.

The factual matrix of the case was that the land in question belonged to a deceased-Vindeshwari Prasad. It was alleged in the plaint that after the death of Vindeshwari Prasad, the plaintiffs and defendants 1-2 were having 1/3rd share each and there was no right vested in defendants 3-6. The instant suit was filed as second appeal against the judgement rendered by Additional District Judge (Fast Track Court) Rewa which had confirmed the judgment and decree passed by 5th Civil Judge Class-II Rewa.

It was submitted by the appellant that in view of the concurrent finding of the fact that the plaintiff was not in physical possession of the land, the suit filed was not maintainable in view of provision under Section 34 of the Specific Relief Act, 1963. It was further contended by the appellants that in absence of the evidence of any forged document, the suit was not maintainable. It was contended by the appellants that Will in question was not a proven document and the Trial Court had made an error.

The counsel for the respondent submitted that as the Will was not proved by the defendants 3-5 and could not been found proved by the Courts, no interference could be warranted in the second appeal. It was further contended by the respondents that Will in question was propounded by the defendants 3-5, and therefore they were liable. It was also contended by the respondents that the property in question was an agriculture /revenue paying land and partition had to be effected by the Tehsildar.

The first substantial question of law was whether the declaration of share could be made irrespective of Section 34 of Specific Relief Act, 1963. The High Court came to the conclusion that the declaration of share could be made irrespective of Section 34 of the Specific Relief Act, especially in case where the land was agriculture land. The Court relied on the judgement of Karelal v. Gyanbai, 2018 SCC OnLine MP 1021 where there were identical set of facts and circumstances, and the Court had held that- “The matter can be ascertained from another angle also. In the present case, only the agricultural land is the disputed property. If the defendants had never challenged the rights and title of the plaintiffs, then there was no need for the plaintiffs to file a suit for declaration of title or even for partition.”

The second substantial question of law was that the Will was propounded by defendants 3-5, therefore it was for them to prove Will in question which was not proved by the Courts below. The Court relied on the judgment of Anathula Sudhakar v. P. Bucchi Reddy, (2008) 4 SCC 594 where it was held that “a cloud is said to raise over the person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over, is made or shown.” The Court pointed out that the principle enshrined in order 6 rule 13 Civil Procedure Code, 1908 is also worth importance wherein it was specifically laid down that the burden of proving the will always lies upon the propounder, i.e. defendant in the present case. The Court also considered the proposition laid down by Supreme Court in Anathula Sudhakar after which it became apparent that a relief of declaration is required to be sought only when the defendant is able to show any apparent defect in title of plaintiff. It was observed by the Court that the findings with regard to the execution of the will was purely a question of fact and therefore cannot be interfered with by this Court as it was laid down in Sham lal v. Sanjeev Kumar, (2009) 12 SCC 454. The Court held that in presence of prior execution of Agreement of Gift, the Will becomes a suspicious document.

The High Court dismissed the second appeal.

[Ramkali v. Murirtkumari, Second Appeal No.1015 of 2004, decided on 20-07-2022]


Advocates who appeared in this case :

Sankalp Kochar, Advocate, for the Petitioner;

Ashok Lalwani, Advocate, for the Respondent.

by Roma Sangwan
Op EdsOP. ED.

   

Introduction and Issues Crucial to the Decision of the Court

Domestic violence has been a deep-rooted evil in India wherein weak, vulnerable and innocent women suffer at the hands of men. According to the reliable report of India, the National Crime Records Bureau (NCRB), 2019 it has been recorded that the estimate goes to somewhat around 30.9% of the cases of all 4.05 lakh cases are registered under Penal Code, 18602 and Section 498-A3.4 This date showcases the prevalence of the domestic violence in India even after stringent laws and Act in place for the safety of women and their children.

This comment elaborates the righteousness of the landmark judgment of Satish Chander Ahuja v. Sneha Ahuja,5 which gave a clear understanding of the rights of women in shared household. Crime against women and children has been at a constant surge in India and hence the Court elaborated which ultimately broadened the meaning of “shared household” as per Section 2(s)6 of the Protection of Women from Domestic Violence Act, 2005 (“Act of 2005”). Earlier Indian women could only go to the civil courts to avail decree of divorce or could go to the criminal courts under Section 498-A IPC hence, till the year 2005 the remedies for women were limited wherein no emergency relief could be sought by the victim, after the Act of 2005 the scope of remedies for women have increased hence, making the 2005 Act a saving grace for the victims who sometimes suffer as a compulsion and sometimes by the choice of silence in India.

The Court in the present matter dealt with various crucial issues for securing justice for women and their children when they have been subjected to mental and emotional cruelty at the hands of their husband and in-laws. The issues were crucial to understand the definition of “shared household” under Section 2(s) of the Act of 2005 including the interpretation of the earlier judgment of this Court in S.R. Batra v. Taruna Batra7, and various other questions that would further clear the ambiguity in the interpretation of the Act of 2005 and its earlier application in the judgment by the trial court. These issues were drafted by the Court after prudent hearing of the case and the landmark judgment was delivered on the basis of these issues. The brutality and injustice suffered by women in India will only be curbed by the constant involvement of the judiciary in delivering justice.

Brief facts of the case and lower court decisions

In the present matter, the son of Satish Chander Ahuja (hereinafter “R” or “respondent”) married Sneha Ahuja in 1995 and after the said marriage the couple started residing in the first floor of the residence owned by Satish Chander Ahuja. In around 2014 the couple started to have differences and after that the husband filed a divorce petition under Sections 13(1)(i-a) and (iii)8 of the Hindu Marriage Act, 19559.

Chief Metropolitan Magistrate

Further, the wife, Sneha Ahuja filed an application suggesting trauma under Section 12 of the Act of 2005 impleading the husband as Respondent 1, her father-in-law Satish Chander Ahuja as Respondent 2 and mother-in-law as Respondent 3. In the said application, Sneha Ahuja alleged that she has suffered severe mental and emotional trauma by the respondents.

In regard to the said application the Chief Metropolitan Magistrate passed an interim order that the children or the wife Sneha Ahuja will not be disposed of the said shared household property nor should the respondents alienate such property.

Trial Court

Aggrieved by the interim order passed by the Chief Metropolitan Magistrate, the appellant filed a suit for permanent injunction impleading Sneha Ahuja as the sole defendant. Herein, the appellant i.e. Satish Chander Ahuja alleged that he and his wife has been a victim of domestic violence whilst suffering from various heart ailments, hypertension at the age of 76 and hence wants to live peacefully in his self-acquired residence. It was further stated that Sneha Ahuja filed the above domestic violence application to counterblast the divorce petition filed by the husband “R”.

It consequently was proved by the appellant that the residence in the present matter is his self-acquired property by filing required documents under Order 11 Rule 13 CPC10. After duly hearing and recording the present documents the trial court held that the plaintiff is decreed for relief of permanent injunction as prayed for and further asked Sneha Ahuja to vacate the premises of Satish Chander Ahuja within 15 days.

Delhi High Court

Aggrieved by the above judgment Sneha Ahuja filed regular first appeal in the Delhi High Court. The Delhi High Court held11 that the trial court erroneously passed the decree based only on the fact that whether the property in question was a “self-acquired” or “shared household” and gave no regard to the fact that the domestic violence case was still pending adjudication and determination by the court. Aggrieved by the judgment of Delhi High Court the present appellant, Satish Chander Ahuja filed an appeal in the Supreme Court of India.

Supreme Court: A landmark judgment

The Supreme Court whilst pronouncing the judgment12 gave regard to the objectives of the Act of 2005 which is to safeguard the rights of the aggrieved women of India.

Firstly, the Court deciphered the terms “means” and “includes” as mentioned in the definition of “shared household” under Section 2(s) of the Act of 2005. The Court while relying on Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union13, Pioneer Urban Land & Infrastructure Ltd. v. Union of India14, South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat15 and Karnataka Power Transmission Corpn. v. Ashok Iron Works (P) Ltd.16 stated that the term “includes” is interpreted to enlarge, broaden and expand the meaning of the sentence and hence the second half of the definition in Section 2(s) is exhaustive and all-inclusive. Thus, the Court stated that “shared household” does not just mean the household property of the joint family of which the husband is a member of or has a share in but has a wider scope of interpretation.

Secondly, the Court thoroughly analysed the judgment of the Supreme Court in S.R. Batra v. Taruna Batra17 wherein the Court specifically emphasised that the interpretation in the said case was not a correct interpretation and lacked the legal intent of the drafters. The Court further held that the words “lives or at any stage has lived” does not mean any place they have lived fleetingly including any relative's residence, if the definition is broadened to this extent then that would entirely destruct the motive of the Act and would lead to chaos. The living has to have some form of permanency and should have the intention of the parties to accept the premises as “shared household” property.

Thirdly, the Court concurred with the Delhi High Court's judgment and held that the decree of the trial court was unsustainable as the power under Order 12 Rule 6 18 CPC is discretionary and due to that the trial court must have not given the impugned judgment. The Court in this reference relied on Himani Alloys Ltd. v. Tata Steel Ltd19, S.M. Asif v. Virender Kumar Bajaj20, Section 26 21 of the Act of 2005 and further relied for interpretation of the said Section 26 on Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi22.

Fourthly, the Court opined that the plaintiff in the domestic violence case can be treated as “respondent” as per Section 2(q), of the 2005 Act for the sole purpose of determining the rights under Sections 17 23 and 19 24 read with Section 26 of the said Act of 2005. The Court relied on Hiral P. Harsora v. Kusum Narottamdas Harsora 25 wherein the Court struck down “adult male” and further held that for a person to treated as a “respondent” as per Section 2(q) of the Act of 2005, it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved.

Fifthly, the Court while relying on Order 1 Rule 10,26 CPC held that the husband is not a necessary party or a party with the view of the fact that no relief has been claimed against the son of the plaintiff. But the Court further gave regard to Sections 17, 19 and 16 27 of the 2005 Act wherein for the purpose of fulfilling the right of alternate accommodation and maintenance under the Hindu Adoptions and Maintenance Act, 195628 the husband is a necessary party.

“Woman now has a right of residence in the property owned by father-in-law as per the 2005 Act.”

This case has been a turning point for securing justice and rights of women and children aggrieved by domestic violence in India and the author subsequently believe it to be a righteous decision by the Hon'ble Justices. Even in the judgment the Judges particularly put specific reliance on the objectives of the 2005 Act wherein securing the rights of the aggrieved woman and children has been the core object and purpose of the legal drafters.

The issues framed by the Supreme Court were of utmost importance but the core understanding and interpretation of the term “shared household” under Section 2(s) of the Act of 2005, overruled various judgments hence making the decision in Satish Chander Ahuja v. Sneha Ahuja29, a landmark judgment. If the Judges would have relied on prior decisions of the Courts in interpreting the meaning of “shared household” then that rightly so would have created a havoc and chaos. The Court by drifting away from the earlier interpretation gave a new hope to the aggrieved woman in India.

The irony is that the definition of “shared household” has been interpreted by the Court in such a manner that would broaden and yet make it limited than the earlier interpretation of the term. Where before the term was interpreted in a literal manner giving no regard to the legal understating and object of the Act of 2005.

It is pertinent to note that the Court disregarded the judgment in S.R. Batra v. Taruna Batra30 as that would only lead to confusion and chaos in the justice-delivering system. Wherein the Court interpreted and expanded the definition is such a direction that would make any casual place of stay by the couple a “shared household” as per Section 2(s) of the 2005 Act. If this was legal intent of the drafters then the parties would ask for a right of residence in any of the relative's homes where they have resided fleetingly together even as a guest which would shatter the whole idea and object of the Act of 2005. The present case sheds light on the fact that broadening the extent of a definition can sometimes lead to more problems than providing prudent solutions. Hence, in the present case the Judges made a clear distinction as to what will form the exhaustive meaning of the definition and gave importance to the intent of the parties to reside in a place with certain permanency rather than just a casual stay. Herein the parties stayed in the self-acquired property of the father-in-law since their marriage which took place in 1995 that shows the “intent of parties to reside in the said residence with certain permanency” making it the “shared household” of the parties.

It is further prudent to note that after this decision the wife would be entitled to right of residence even in the property of father-in-law as per the Act of 2005 making it a landmark judgment which has opened new dimensions for woman and their security. This case has proved to be a pillar which will open new pathways to a more liberal and safe environment for aggrieved woman and children in India.

Conclusion

This judgment paved new pathways for the Act of 2005 but still the condition of women in India is not remotely close to getting any better. Women still are suffering from various brutalities at the hands of their husbands, in-laws, brothers and so on and so forth.

Relying on the statement by the court in the instant matter, the progress of society is still a far-fetched dream in India, there is still a need for more landmark judgments wherein the court regards women as equal and liberal as men. Protecting the rights, liberty and security of women in India must be the core object while deciding not just the matter of domestic violence but also other crucial questions of law.


† Author is a lawyer presently working in the corporate legal department of a company and can be reached at <romasangwan@gmail.com>.

2. Penal Code, 1860.

3. Penal Code, 1860, S. 498-A.

4. Ministry of Home Affairs, NCRB Report Statistics, Vol. 1, available at <https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf> (visited on 6-2-2022).

5. (2021) 1 SCC 414.

6. Protection of Women from Domestic Violence Act, 2005, S. 2(s).

7. (2007) 3 SCC 169.

8. Hindu Marriage Act, 1955, Ss. 13(1)(i-a) and (iii).

9. Hindu Marriage Act, 1955.

10. Civil Procedure Code, 1908, Or. 11 R. 13.

11. Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886.

12. (2021) 1 SCC 414.

13. (2007) 4 SCC 685.

14. (2019) 8 SCC 416.

15. (1976) 4 SCC 601.

16. (2009) 3 SCC 240.

17. (2007) 3 SCC 169.

18. Civil Procedure Code, 1908, Or. 12 R. 6.

19. (2011) 15 SCC 273.

20. (2015) 9 SCC 287.

21. Protection of Women from Domestic Violence Act, 2005, S. 26.

22. (2017) 14 SCC 373.

23. Protection of Women from Domestic Violence Act, 2005, S. 17.

24. Protection of Women from Domestic Violence Act, 2005, S. 19.

25. (2016) 10 SCC 165.

26. Civil Procedure Code, 1908, Or. 1 R. 10.

27. Protection of Women from Domestic Violence Act, 2005, S. 16.

28. Hindu Adoptions and Maintenance Act, 1956.

29. (2021) 1 SCC 414.

30. (2007) 3 SCC 169.

OpEd by Soumyaa Sharma
Op EdsOP. ED.

   

It is not so surprising to often see the Indian judiciary wearing a cloak of inquisitorial system of justice or be seen involved in activism to instate or reinstate justice and/or means of such justice. One such means, the alternative dispute resolution (ADR) has been majorly developed and promoted by judicial activism. Judiciary has proactively evolved ADR by giving it a true meaning and purport in terms of its implementation.

This article strives to show glimpses in past of judicial activism especially in terms of broadening the spectra of matters to deem fit for reference to ADR and in conclusion briefly discusses and predicts if similar trend of activism will exist in the near future in the light of the pending Mediation Bill, 20212 introduced in Rajya Sabha on 14-12-2021.

Noteworthy traces of such activism can be first seen in the judgment of Hussainara Khatoon v. State of Bihar3, wherein the “right to speedy trial” was recognised as being implicit in Article 21 of the Constitution4. To give effect to the said mandate waking up to the need of the hour, Parliament considered introducing various ADR mechanisms to strengthen the judicial system, which inter alia included:

(i) In 1994, amendment to the Legal Services Authority Act, 19875 was introduced to constitute and organise Lok Adalats.

(ii) In 1996, the Arbitration and Conciliation Act6 (A&C Act) was enacted repealing the obsolete 1940 Arbitration Act. Arbitration as a mode of ADR has gained recognition with the A&C Act being amended several times, noteworthily in 2015 and 2018.

(iii) Introduction of Section 897 dealing with court annexed ADR in the Civil Procedure Code, 1908 (CPC). The said amendment came in effect only on 1-7-2022.

(iv) In parallel to Section 89 CPC, in 1999 (w.e.f. 1-7-2002), Section 168 in the Court Fees Act, 1870 was introduced regarding refund of fees in matters referred under Section 89 CPC.

In the wake of Section 89 CPC, on 27-7-2002, the then Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre. The CJI called a formal meeting of the Chief Justices of all the High Courts of the Indian States in November 2002 at New Delhi to impress upon them the importance of mediation and the need to implement Section 89 CPC.9

Section 89 CPC, as vital as a statutory step it was, had serious shortfalls in terms of its implementation that were fixed by the Supreme Court. Section 89 CPC had anomalies that were identified by Supreme Court in a series of cases, which are discussed in subsequent paragraphs of this article. Interestingly, till date the legislature has carried out no amendment to Section 89 to fix these anomalies. But Section 89 is very well been used by courts to refer the matters through ADR, though only after the Court supplemented the wording of Section 89 with purposive interpretation. The Supreme Court in fact was aware of its need to step up, which was respectfully nothing short of being called as activism. The Court relevantly while fixing the anomalies stated that:10

9. If Section 89 is to be read and required to be implemented in its literal sense, it will be a trial Judge’s nightmare. It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind Section 89 is laudable and sound. Resort to alternative disputes resolution (for short “ADR”) processes is necessary to give speedy and effective relief to the litigants and to reduce the pendency in and burden upon the courts.

The 2003 three-Judge Bench judgment in Salem Advocate Bar Assn. v. Union of India called as Salem Bar (1)11 finds a special notice in this regard. The Supreme Court in Salem Bar (1)12, directed for a committee to be appointed to frame model rules explaining the procedure for mediation. The amendment in Section 89 was made on the recommendation of the Law Commission of India and Justice Malimath Committee.13 The Law Commission of India, in compliance with the aforesaid judgment, drafted the consultation paper on ADR and Mediation Rules in 2003 which was adopted by several High Courts to formulate their separate Mediation Rules. Later, Justice Malimath Committee14 recommended making it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation or judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the ADR methods that the suit could proceed further. The Chief Justice of India set up the Mediation and Conciliation Project Committee (MCPC) in 2005 for encouraging amicable resolution of disputes pending in the courts in accordance with Section 89 of the Code of Civil Procedure.

In Salem Bar (1)15, the Supreme Court upheld the validity of Section 89 with all its imperfections and referred to a committee, as it hoped that Section 89 would be implemented by surfacing the infirmities in it. Later in 2005, in another subsequent case of Salem Advocate Bar Assn. v. Union of India, known as the Salem Bar (2)16, recognised certain anomalies under Section 89 and gave purposive interpretation thereby making Section 89 CPC workable. The Supreme Court emphasised the need for ADR in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.17 (Afcons case). The judgment firstly acknowledged the anomalies in the understanding of Section 89 while referring to Salem Bar (1)18 and Salem Bar (2)19; and secondly it laid out guidelines for the courts to follow for the effective implementation of Section 89 CPC, which encourages parties to settle their disputes by means of ADR.

In Afcons case, the Court adjudged that reference to ADR is a must and mandatory under Section 89 CPC, “where it appears to the court that elements of settlement exist”20. Even though the Court in Afcons case21 was faced with the issue of adjudging whether mutual consent is necessary for arbitration, the Court made observations with regard to “mutual consent” required or not under all ADR methods recognised under Section 89 CPC. The Court held that mutual consent is required for arbitration and conciliation but not for Lok Adalat, mediation and judicial settlement. Further, an illustrative category of disputes which would be fit and not fit for reference to ADR were also observed.22 In the said list of cases, cases of criminal offences and that of serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. were held not fit for ADR reference. The Supreme Court in the recent judgments has clarified and limited the scope in cases of fraud. In 2021, the Supreme Court has clarified regarding non-arbitrability of cases involving fraud that “cases involving prosecution for criminal offences, it is also important to remember that the same set of facts may have civil as well as criminal consequences”.23

Through judicial activism the concept and use of ADR has been expanded tremendously. In precedents such as K. Srinivas Rao v. D.A. Deepa24 mediation/ADR was encouraged in matrimonial cases and criminal cases and accepting compromises even in the non-compoundable cases such as Section 498-A25 IPC (though with caution). The Court allowed quashing of complaints on the basis of settlement. Further the Court issued directions re mediation such as setting up pre-litigation desks/clinics; giving them wide publicity and making efforts to settle matrimonial disputes at pre-litigation stage.26 The Court observed:27

44.there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation … In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.

The judicial courts have proactively allowed mediation in cases of compoundable offences such as Section 13828 of the NI Act.29 In the 2019 judgment of MTNL v. Canara Bank30 the Supreme Court, while invoking the doctrine of “group companies” permitted a non-signatory to an arbitration agreement to participate in the arbitration proceedings. The Supreme Court observed that a non-signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non-signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract, the non-signatory will also be bound and benefited by the relevant contracts. In the instant case, the Supreme Court observed that there was enough factual background to suggest that the parties intended to bind the non-signatory party to the arbitration proceedings.

Needless to add, countless sets of judgments exist where the Court has stressed on restraint to be practised by the courts in cases of review of arbitral awards under Section 3431 of the Arbitration and Conciliation Act, 1996. These judicial precedents lineage starts from the judgment of Associate Builders v. DDA32 in 2014, followed by certain important judgments such as that of Ssangyong Engg. and Construction Co. Ltd. v. NHAI33 and coming to the judgment in Delhi Airport Metro Express (P) Ltd. v. DMRC34 wherein the Court has clarified that it may not interfere with the arbitral award merely because the other view appears more plausible. Even in one of another judgment, Welspun Specialty Solutions Ltd. v. ONGC Ltd.35the Court set aside the order of the High Court and the Single Judge interfering with the award under Section 34 of the A&C Act and upheld the judgment of the Arbitral Tribunal.

All these landmark cases indicate the heavy weight and trust that our judiciary entrusts with the ADR mechanisms such as arbitration.

In the 2019 judgment of Perry Kansagra v. Smriti Madan Kansagra36 the Supreme Court identified various kinds of disputes where ADR may be a better alternative than litigation, such as cases relating to trade, commerce and contracts including, inter alia, money claims arising out of contracts. Disputes relating to specific performance or disputes between insurer and insured, bankers and customers were also considered to be better resolved through an ADR mechanism rather than litigation.

In the judgment of M.R. Krishna Murthi v. New India Assurance Co. Ltd.37, the Supreme Court directed the Government to consider the feasibility of enacting a Mediation Act.

In background of such events, it is not tough to view the upcoming trend that judiciary might adopt if the pending Mediation Bill of 202138 is enacted in its present state, that has been introduced in Rajya Sabha on 21-12-2021. But will the same provide a wholesome law on mediation and will be putting rest to the era of judicial activism in matters of mediation? May be it is too early to say for sure but at the outset it can be seen that provisions of the Bill incorporate limited power to judicial courts to decide if the matter is fit for mediation and scope for reference. The Bill incorporates a proviso to Section 7, which states:39

Provided that nothing contained herein shall prevent any court, if deemed appropriate, from referring any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.

The Bill provides a schedule to compartmentalise cases that are not fit for mediation40, which has inadvertently categorised cases such as that of fraud or criminal offences as not fit for mediation at all. In the few cases noted above this seems to be an obsolete view that has been redefined and yet the Bill fails to incorporate it.

Further, the Bill mechanically proposes to make pre-litigation mediation as mandatory41, and thereby not taking into account the most important criteria of success of any mediation i.e. mutual consent. And importantly the Bill leaves not much power with judicial courts to decide if the matter even if not in the category of “disputes not fit for mediation” may still be unfit for mediation. Only the power to grant some interim relief under Section 842 of pending Bill may be granted by the court or tribunal before commencement or during the mediation proceedings is possible. But in toto such a mechanical approach towards implementation of an ADR mechanism that too of mediation is bound to have its shortfall.

It is indicative that the Bill if passed in its present form indicates that it may eventually call for more activism on the part of the Indian judiciary in giving it purposive interpretation for its effective use in adjudging matters through ADR. It can be said that more surprises await to be unboxed where the judiciary can be seen in action with its fathomable and praiseworthy activism.


† Advocate. Author can be reached at <soumyaasharma@outlook.com>.

2. Mediation Bill 2021 (43 of 2021).

3. (1980) 1 SCC 93.

4. Constitution of India, Art. 21.

5. Legal Services Authority Act, 1987.

6. Arbitration and Conciliation Act, 1996 (26 of 1996).

7. Civil Procedure Code, 1908, S. 89.

8. Court Fees Act, 1870, S. 16.

9. Mediation and Conciliation Project Committee, Supreme Court of India, Delhi, Mediation Training Manual of India, p. 7, available at <https://main.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf >.

10. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

11. (2003) 1 SCC 49.

12. (2003) 1 SCC 49.

13. Delhi Mediation Centre, available at <https://delhicourts.nic.in/dmc/history.htm> (last visited on 12-5-2022).

14. Report of the Committee on Reforms of Criminal Justice System, (Vol. 1)(March 2003).

15. (2003) 1 SCC 49.

16. (2005) 6 SCC 344.

17. (2010) 8 SCC 24.

18. (2003) 1 SCC 49.

19. (2005) 6 SCC 344.

20. Afcons case, (2010) 8 SCC 24, at para 26.

21. (2010) 8 SCC 24.

22. Afcons case, (2010) 8 SCC 24, at paras 27-28.

23. Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713.

24. (2013) 5 SCC 226.

25. Penal Code, 1860, S. 498-A.

26. K. Srinivas Rao, (2013) 5 SCC 226 at para 46.

27. K. Srinivas Rao, (2013) 5 SCC 226.

28. Negotiable Instruments Act, 1881, S. 138.

29. Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032.

30. (2020) 12 SCC 767.

31. Arbitration and Conciliation Act, 1996, S. 34.

32. (2015) 3 SCC 49.

33. (2019) 15 SCC 131.

34. 2021 SCC OnLine SC 695.

35. (2022) 2 SCC 382.

36. (2019) 20 SCC 753.

37. (2020) 15 SCC 493.

38. Mediation Bill, 2021.

39. Mediation Bill, 2021, S. 7.

40. Mediation Bill, 2021, First Schedule.

41. Mediation Bill, 2021, S. 6.

42. Mediation Bill, 2021, S. 8.

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