Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Service Tax Appellate Tribunal, Chennai: Assessee preferred this appeal before P. Dinesha, J., where assessee was only aggrieved by the dismissal of the appeal by the First Appellate Authority, without condoning the delay in filing the first appeal.

Assesse for explaining delay mentioned that one of the partners of the appellant firm had personal problems. Per contra, it was submitted by the respondent that the delay in filing the first appeal was nine months and the power to condone the delay after the end of 90 days lies only with the Court thus, impugned order should sustain. It was contended by the assessee that sufficient cause was shown and that the Courts had held that a liberal approach should be in condoning of delay. Lest a deliberation is shown for delay the explanation for delay needs to be accepted.

Tribunal was of the view that appeal was filed under Section 129-A of the Customs Act and Section 129-A (5) empowered this forum to condone the delay of any number of days. Section 129 does not authorize this forum to enter the domain of the first appellate authority since the scope of appellate jurisdiction was limited and to assume the jurisdiction of the first appellate authority by this forum was not authorized. It was observed that the first appellate authority had exercised its discretion in accordance with limitation law and thus, this forum could not have judged the correctness of the same. Therefore, this appeal was dismissed. [Vikgnesh Enterprises v. Commissioner (GST), 2019 SCC OnLine CESTAT 55, Order dated 16-04-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J., dismissed an execution first appeal filed against the order of Additional District Judge whereby appellants objection to the execution of a money decree sought by decree-holder against the judgment-debtor was dismissed.

It was contended by the appellant-objector that she was the sole owner of the two properties attached in the execution and the judgment-debtor, her son, had no right over them. The Executing Court dismissed the objections of the appellant holding that in proof of her title to the said properties, the appellant filed only a Power of Attorney of her husband in her favour which wasn’t sufficient. Counsel for the appellant submitted that there was a family settlement, however, neither was any such settlement pleaded in the objections nor any document filed in that regard.

The High Court was of the view that it appeared that the purpose was to delay the execution. The appellant and the judgment-debtors were hand-in-glove with each other and were not making a clean breast of state of affairs. In Court’s opinion, it was an attempt to fabricate the documents. Furthermore, one of the judgment-debtors had already left India. The court observed that appellant-objector could not on one hand claim arms length distance from judgment-debtors and on the other hand represent their interest. The appeal was held to be an abuse of process of Court and thus dismissed.[Charanjit Kaur Virk v. Premlata Sharma,2018 SCC OnLine Del 12020, dated 15-10-2018]

Case BriefsHigh Courts

Karnataka High Court: In an appeal under Section 96 CPC, directed against the judgment and decree passed by the II Additional Senior Civil Judge and JMFC, Tumakuru, in O.S. No. 10/2014, dismissing the suit for partition and separate possession; and cancellation of documents, a two-Judge Bench comprising of Jayant Patel and S. Sujatha, JJ. held that a High Court is empowered to dismiss the first appeal at the preliminary stage of hearing if there is no merit in the appeal.

Plaintiff-appellants filed a suit for partition and separate possession against the defendants. Plaintiffs also claimed for cancellation of the relinquishment deed made by the plaintiffs in favor of the defendants relinquishing their right, title and interest of the joint family properties. The High Court held, that the evidence put forth by the defense proves that plaintiffs have executed the relinquishment deed, on their own will and volition. Thus, the joint family status of defendants and plaintiffs was severed and the relief of partition and separate possession needs to be rejected. As regards relief to cancel the relinquishment deed, the court held, that the plaintiffs failed to prove that it was an outcome of fraud, coercion and undue influence; and hence, it was also rejected. Learned counsel for the petitioners contended that the litigant have a right to be heard on facts and law in first appeal and the same cannot be disposed of in limine at the time of the admission.

The Court quoted and discussed Section 96 CPC along with Order 41 Rule 11 CPC. The High Court relied upon the judgment of the Division Bench of the same Court in Sri T.S. Channegowda v. Sri H. Thopiah, 2015 SCC OnLine Kar 8184 : ILR 2015 kar 2809, to hold that the object of providing a statutory appeal is to examine whether the trial court has erred in deciding the cases. It does not mean that in every case the appeal has to be admitted. The High Court also relied on the judgment of the Apex Court in Uttar Pradesh Avas Evam Vikas Parishad v. Sheo Narain Kushwaha, (2011) 6 SCC 456, to hold that the High Court is empowered to dismiss the first appeal at the preliminary stage of hearing if there is no merit in the appeal. The said dismissal should be supported by reasons while exercising powers under Order 41 Rule 11 CPC.

After considering all the documents and evidence produced by learned counsel for the appellants, the High Court held that the plaintiffs have miserably failed to establish their case. No error was found in the appreciation of evidence by the trial court. The High Court found no merit in the appeal and accordingly dismissed the appeal. [Smt. Lakshminarasamma v. Sri Lakshmana, Regular First Appeal No. 502/2017, decided on 21.07.2017]