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NOTICE

Members of the Bar requested to appear through Video Conference and avoid Physical Appearance in Court, as far as possible, on account of the increase in the number of COVID-19 cases in the city.

Link to the Notice.


Karnataka High Court

[Notice dt. 08-04-2021]

Case BriefsHigh Courts

Karnataka High Court: N. Sanjay Gowda, J., allowed the petition and quashed the demand note.

The facts of the case are such that the petitioner is supplied electricity by the licensee i.e. Hubli Electricity Supply Company Limited i.e. ‘HESCOM’. Apart from this, it is also supplying energy from the energy exchange every month which is called as purchase of electricity from Open Access Source. The petitioner is liable to pay tax on electricity consumed by it. A demand to pay a sum of Rs. 94, 47, 534 being a demand for payment was issued by HESCOM. The grievance of the petitioner is regarding whether the electricity tax which is to be paid should be levied on the price at which it purchases, be it from the licensee or from the Open Access Source. Aggrieved by the demand note, instant petition under Article 226 and 227 of the Constitution of India was filed on grounds of it being without jurisdiction and thus unconstitutional.

Counsel for the petitioner submitted that the price paid for purchase of electricity through Open Access Source is different than the price paid by it for the electricity sold to it by the licensee HESCOM.

Counsel for the respondents submitted that irrespective of source of electricity, every consumer is liable to pay tax on the electricity consumed within the State and since, admittedly, petitioner had consumed the electricity within the State of Karnataka, it was bound to pay electricity tax on the rates at which electricity has been supplied by HESCOM.

The Court observed that The Karnataka Electricity (Taxation n Consumption or Sale) Act, 1959 i.e ‘The Act’ was enacted to provide for levy of tax on consumption of electricity energy in the State of Karnataka in the year 1959 for sale of electricity energy in the State of Karnataka.

The intent of Section 3 of The Act is clear that whenever electricity is consumed by a consumer within the State of Karnataka, the consumer is bound to pay electricity tax on that on ad valorem basis at the rate of 6% on the charges payable on the electricity sold or consumed. The deliberate use of the expression “charges payable on electricity sold to or consumed by any consumers” would indicate that the charges for the electricity sold and for the electricity consumed could be different. Section 3 sub section 2 makes it clear that the source of electricity consumed by the consumers would be the yardstick for determination of the electricity charges on the basis of which an ad valorem rate have to be calculated.

Further, it was observed that as per Section 4 (1)(a), licensee is required to collect and pay to the State Government the electricity tax payable under the Act on the electricity charges included in the bill issued by him to the consumers. Thus, it is applicable in respect of electricity sold by the license.

Section 4 (1)(b) clearly states that the licensee shall collect and pay to the State Government the electricity tax payable on the units of electricity supplied to consumer by a non licensee through a license. Thus, a clear distinction is made on the manner in which the tax is paid.

The Court concluded that it is to be borne in mind that the person who sells the electricity would necessarily pay the wheeling and access charges to the licensee and the seller of the electricity would be basically using the infrastructure and paying for the distribution. The licensee, therefore, would have no preferential right.

The Court thus held “the demand made by HESCOM by computing the tax at the rate at which it was selling electricity to its consumers cannot be the basis for levying and collecting the electricity tax. HESCOM shall now calculate the electricity tax at the rate at which the petitioner had purchased the electricity from Open Access Source and issued a revised demand within a period of two weeks from the date of receipt of a certified copy of this order”

In view of the above, petition was allowed.[Southern Ferro Ltd. v. State of Karnataka, W.P. No. 105054/2017, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Advocates before the Court:

Counsel for the Petitioner: Mr Gurudas Kannur (Senior Counsel) and Mr Narayan G. Rasalkar (Adv.)

Counsel for the respondent: Ms K. Vidyawati (Add. Adv. Gen), Mr Vinayak S. Kulkarni (for R1, 2 and 5) and Mr B. S. Kamate (Adv.)

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J. dismissed the petition being devoid of merits.

Background

The facts of the case are such that the property in question belongs to the ownership of the respondent-plaintiff–“Mutt” and the husband of the petitioner-defendant during his life had taken the same on lease vide registered lease deed for the purpose of erecting a building for a period of 99 years on a yearly rent of Rs. 50 and delayed payment of rent at a rate of 6% p.a. so that after the expiry of the tenure, the respondent-plaintiff shall put the same to the use of its pilgrims. The petitioner, however, remained in the arrears of rent for years, hence a legal notice was issued by the respondent-plaintiff terminating the lease for non payment of rents. The petitioner thereby replied that the office of the respondent Mutt declined to accept the tender of rental amount since 2009 stating that the land has vested in the State Government under the provisions of the Karnataka land Reforms Act, 1961. A suit was filed seeking an order for relieving her from forfeiture of the lease which was rejected. Aggrieved thereby the petitioner filed application in Form 7A seeking grant of the land under the provisions of the Karnataka land Reforms Act, 1961.

Observations and Decision

The Court observed that the text and content of Section 114 require bonafide on the part of the tenant who has been remaining in arrears of rent; if that is lacking, a tenant cannot be permitted to seek refuge under the umbrella of this provision; otherwise this provision runs the risk of being used as an instrument of unconscionability to defeat the accrued right of re-entry accruing to the landlord; in deciding whether there is bonafide facts and circumstances of the case need to be kept in view.

The Court analyses that in the case at hand, the petitioner lacks bonafide because she has filed the application seeking grant of the land under Section 77 A of the Karnataka land Reforms Act, 1961 as amended; nothing prevented her even then, from making payment of arrears of rent particularly when the rate of rent is apparently frugal, still the petitioner chose to remain in arrears having built a huge building. This clearly shows the incongruity on the part of the petitioner in somehow squatting on the property of the respondent without complying with the agreed covenants of tenancy.

The Court observed that it is true that Section 114 of T.P. Act gives right to apply for such a grant merely because a tenant can so apply, it cannot be readily inferred that his of act of remaining in arrears of rent n that found should be treated as bonafide an act contrary to law may still lack bona fide depending upon the circumstances of a case; for an act being bona fide, one has to show that it is done in good faith i.e. with honesty, sincerity and genuineness and without any element of culpability from this inarticulate premise.

The Court held “the writ petition being devoid of merits is liable to be dismissed” [Velthoria Sequiera v. Sode Vadiraja Mutt, Writ petition No. 30053 of 2019, decided on 16-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: Hemant Chandangoudar, J. allowed the petition and quashed the impugned order.

The facts of the case are such that the plaintiffs in the original suit filed an application for partition and separate possession of their legitimate share. The defendants therein sought to produce an unregistered partition deed so as to establish the prior partition that took place which was opposed by the plaintiffs. The Trial Court refused to permit petitioners to mark the said unregistered document on the ground that the same does not fall under the purview of the proviso to Section 49 of the Indian Registration Act. Hence the instant writ petition under Article 226 and 227 of the Constitution of India was filed.

Counsel for the petitioners relied on judgment Srinivasa v. Huchappa, 2014 (2) KCCR 1605 and submitted that the Trial Court has erred in refusing to permit the petitioners/defendants to mark the unregistered partition deed as evidence of collateral purpose as the requirement of registration can be considered at the time of considering the matter n merit and not at the time of recording of evidence.

Counsel of the respondents submitted that the document sought to be produced is a compulsorily registerable document. It was also submitted that the said document cannot be used for collateral purpose as the same does not fall under the purview of Section 49 of the Indian Registration Act, 1908 and hence the impugned order is legal and does not call for interference.

The Court observed that on perusal of proviso to Section 49 of the Indian Registration Act, 1908 would indicate that the immovable property which is compulsorily registerable under the Registration Act, 1908 may be taken as evidence for the purpose of collateral; transaction.  It was further observed that the issue involved in this case was examined in the case of Srinivas (supra), wherein it is held that at the stage of recording of evidence, an order permitting marking of unregistered document as evidence is not liable to be interfered with.

The Court thus held that “in view of Section 49 of the Registration Act, 1908 and the decision laid down in the case of Srinivasa (supra) the impugned order passed by the Trial Court is not sustainable in law.”

In view of the above, writ petition was allowed.[Nagppa v. Ketappa, Writ Petition No. 108153 of 2015, decided on 06-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President appoints the following two Additional Judges of the Karnataka High Court:

  • Rajendra Badamikar
  • Sushree Kazi Jayabunnisa Mohiuddin

The above two Judges have been appointed for a period of 2 years.


Ministry of Law and Justice

[Notification dt. 22-03-2021]

Case BriefsHigh Courts

Karnataka High Court: P. Krishna Bhat J., set aside the impugned order with a direction to the Court to hear and dispose of the applications afresh by giving an opportunity to both sides and in accordance with the law.

The facts of the case are such that the respondent/plaintiff in the original suit is doing business under the name ‘Matru Ayurveda’ since the year 2015 having trademark deceptively similar to the appellant/defendant who started his business in the year 2018 with his trademark ‘Matruveda’, thereby established contacts of the respondent/plaintiff got deceived and she has suffered huge losses. Therefore she prayed for a decree of permanent injunction to restrain the appellant/defendant from infringing respondent/plaintiff established registered trademark ‘Matru Ayurveda’ by using the offending trademark ‘Matruveda’ in the preparation, sale and distribution of herbal products or by using a deceptively similar well established and registered trademark ‘Matru Ayurveda’. A suit and applications under Order XXXIX Rule 1 and 2 CPC was filed wherein temporary injunction was granted and appellant/defendant were restrained from infringing and passing off of the respondent/plaintiff registered trademark. Assailing this order, the instant appeal was filed.

Counsel for the appellant/defendant submitted that the plaintiff had started her business under the tradename and trademark ‘Matru Ayurveda’ which is laid inside a logo and similarly the appellant/defendant had started his business under the tradename ‘Matruveda’ with a logo and there is no such resemblance between the same as will lead any purchaser of the products of either parties to confuse between the same. It was further submitted that he had no opportunity of producing documents in support of his stand that the trademark of the appellant/defendant is not deceptively similar to the trademark of the respondent/plaintiff and further that there were several manufacturers who are using trademarks closely similar to the trademark of the respondent/plaintiff and the defendant with the prefixes ‘Matro’.

Counsel for the respondent/plaintiff submitted that the trademark got registered by the appellant/defendant is subsequent to the registration of the trademark of the respondent/plaintiff. It was further submitted that the respondent/plaintiff is a well-established businesswoman who has been marketing her products ever since the year 2015 and the appellant/defendant had started his business only in the year 2018. It was further contended that on account of the close resemblance of the trademark of the defendant with that of the plaintiff, the business of the respondent/plaintiff has been affected drastically and therefore the appellant/defendant is liable to be injuncted from carrying on his business under the trademark ‘Matruveda’.

The Court observed that as per Section 2 (1) (zb) of the Trade Marks Act, 1999, the ‘trademark’ is totally different from the trade name. There may be cases where trade name is also the trade mark but in very many cases it may not be so.

The Court further observed that in the present case there cannot be any dispute that trade names are only a part of the composite whole of the trade mark. The Court while deciding such cases should have in mind the ‘quintessential common man’ who goes to the neighborhood shop with the idea of purchasing product of his liking. Quoting the Court “Has not the Hon’ble Supreme Court said …in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered…”

The Court thus held that the “impugned order is totally bereft of any discussion of the same. Absent of such discussion, weight of authorities dictate that the impugned order be characterized as perverse and resultantly it is liable to be set aside.”

In view of the above, appeal was disposed off.[N. Dinesh Kumar v. Shweta Khandelwal, Miscellaneous First Appeal No. 790/2021, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj J., dismissed the petition being devoid of merits.

The facts of the case are such that two police stations were attacked on account of a blasphemous Facebook post, which took an ugly turn allegedly on account of lack of timely intervention and action by the police, pursuant to which FIR was lodged under Sections 353, 143,147, 148, 333, 436, 427 read with 149 of Penal Code, 1860 i.e IPC, Section 4 of Prevention of Damage to Public Property Act, 1984 and Sections 15, 16, 18 and 20 of Unlawful Activities (Prevention) Act, 1967. During the course of investigation several persons were arrested and their voluntary statements recorded consequent to which search warrants were issued by the Sessions Court under Section 93 of Code of Criminal Procedure i.e. CrPC and searches were conducted thereby. Being aggrieved by this, instant petition was filed for quashing the said order.

Counsel for the petitioner submitted that it is mandatory for a notice under Section 91(1) CrPC to be issued before a warrant of search being issued. It was also submitted that a search warrant should be issued only when the Court has come to a conclusion that the incriminating articles could either be destroyed or done away with if the search warrant is not issued and the order must show details regarding such application of mind.

Counsel for the respondents submitted that the offences alleged are serious in nature as the offices of petitioner’s political organization were used for calling meeting and instigating the mob to indulge in violence. It was further submitted that the impugned order was passed after due perusal of statements of witnesses and other records hence the order is proper and correct.

The Court observed that a perusal of Section 91 CrPC read with Section 93 of Cr PC as a whole would mean that when Section 93 (1) (a) (b) (c) are qualified with the word ‘or’ after each of the said sub-clauses that would mean that they are in the alternate to each other and if any one of the requirements is satisfied, a search warrant can be issued.  Section 93 only provides for three different alternate circumstances. There is neither a priority in the circumstances nor a serial chain link in the circumstances. In that, if any one of the requirements is satisfied, the Court may issue a search warrant to search or inspect the premises.

The Court thus held that the instant case is covered by Section 93 (1) (c) instead of Section 93 (1) (a) and thus the search warrants issued under Section 93 CrPC is dehors and over and above the requirements under Section 91 (1) of CrPC and hence it is not required in all circumstances to issue a summons prior to issuance of search warrant and hence each warrant could be issued in terms of Section 93 (1) (c) without issuing a summon under Section 91 of the CrPC.

In view of the above, petition was dismissed.[Social Democratic Party of India v. State, 2021 SCC OnLine Kar 90, decided on 12-1-2021]


Arunima Bose, Editorial Assistant has put this story together

Appointments & TransfersNews

Transfer Orders

Justice Satish Chandra Sharma, Judge of the Madhya Pradesh High Court transferred as a Judge of the Karnataka High Court and to direct him to assume charge of his office in the Karnataka High Court.

ORDER


Ministry of Law and Justice

[Notification dt. 30-12-2020]

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., allowed the appeal and set aside the impugned judgment.

The case involves default under Section 138 Negotiable Instruments Act, 1881 wherein after the complaint was made summons were issued to the respondent. The complainant examined himself and produced 8 documents pertaining to his claim as evidence. However, during the trial accused remained continuously absent. Hence the Trial Court dismissed the complaint stating that further cross-examination of PW1 was taken as “not tendered for further cross-examination”. When the complainant failed to tender himself for cross-examination, the only course open for the court was to eschew the entire evidence from record and as a result no evidence would have been available before the Trial Court to render a finding on merits of the case, But unfortunately the Trial Court proceeded to discuss the matter on merits and held that the complainant has failed to prove the existence of the debt or other liability and hence acquitted the accused. Aggrieved by the same, present appeal was filed.

Counsel for the complainant submitted that such procedure is legally untenable and cannot be approved.

The Court observed that when no legal evidence was available on record, the Trial Court could have passed an order on merits and rejected the claim of the complainant. It was further observed that the order sheet clearly indicates that not only the accused but also the complainant remained continuously absent.

Thus, the Court held that the trial Court ought to have dismissed the complaint about non-prosecution under Section 256 of the Criminal Procedure Code and not on merits. It further held that complainant is equally responsible for keeping the matter pending for more than 4 years from 2016 onwards.

In view of the above, the appeal was allowed and the impugned order was set aside. [Karage Gowda v. S. Nagaraj, 2020 SCC OnLine Kar 2012, decided on 11-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: Sachin Shankar Magadum J., disposed off the petition granting compensation to the petitioners as the defaulting land fell under the provisions of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996.

The facts of the case are such that the respondents issued a preliminary notification under Section 4(1) of the Land Acquisition Act and thereby acquired the lands of the petitioner for the purposes of submergence in the backwater of Upper Krishna Project without compensating for the ‘phot- kharab’ area as it was not notified.  Aggrieved by the same, instant petition was filed seeking writ of mandamus against the respondents to pass a supplementary award along with statutory benefits in respect of ‘phot- kharab’ area being part of land.

Counsel for the petitioners submitted that after relying on the Aakar Bandh, it was evident that survey was carried out in the year 1965-66 and the ‘phot kharab’ area is classified as ‘A’ kharab and hence would squarely fall under the provisions of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996. It was also submitted that other landowners has also been compensated for the same ‘phot kharab’ area and hence the petitioners are also liable to be compensated for the same.

Counsel for the respondents submitted that the petitioners have waived off their right to claim on the ‘phot- kharab’ area as it was not the subject matter of the consent award and herein the same consent award is being challenged and hence issue of compensation cannot be re-agitated and compensation thereby cannot be granted.

The Court relied on the judgment Sadashivaiah v. State of Karnataka, 2003 SCC OnLine Kar 539 wherein it was held that

“31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under:—

“during the process of classification, land included as unarable shall be treated as “Pot Kharab”. Pot Kharab land may be classified as follows.

(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;

 (b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries.”

  1. Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land. However, when the petitioners claim that the said land falls within 21(2)(a) and therefore they are entitled to the compensation LAO proceeds on the assumption that it falls within Section 22(1)(b) and therefore they are not entitled to compensation as it belongs to the government and accordingly he has declined to pass any award. It is not in dispute that before arriving at such a conclusion the LAO has not given an opportunity to the petitioners in the enquiry under Section 11 of the Act to substantiate their contention. Without any such enquiry, without affording an opportunity to the petitioners he proceeds on the assumption that the said Kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such he has declined to pass the award. On that ground also, the impugned orders passed by the LAO cannot be sustained and is liable to be set aside.”

The Court thus observed that if the land falls within the category of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996, the said ‘phot kharab’ area is not a government ladn and the same would confirm the ownership on the land owners to which this ‘phot kharab’ area is attached and the same would be classified as phot kharab ‘A’ land.

In view of the above, writ petition was disposed off.[Sadappa v. General Manager, WP No. 201108 of 2018, decided on 22-01-2020]


Arunima Bose, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sujatha and Sachin Shankar Magadam JJ., disposed off the petition due to the limitation of its scope regarding the production of the individual only before the Court.

The instant writ petition in the nature of habeas corpus was filed by the petitioner seeking direction to respondents to produce Kum. Ramya G. before Court and set her at liberty.

The daughter of the petitioner Kum Ramya G was presented before the Court by the jurisdictional police and submitted that she is staying at Mahila Sakshatha Samithi, Vidyaranyapura and pursuant to the complaint lodged by her alleging infringement of her right to liberty caused by her parents relating to her marriage with the petitioner. She further submitted that she is in love with one of her colleague working at IQVIA as a software engineer but her parents are not giving permission.

The Court thus observed that a right of any major individual to marry the person of his/her choice is a fundamental right enshrined in the Constitution of India and the said liberty relating to the personal relationships of two individuals cannot be encroached by anybody irrespective of caste or religion.

In light of the aforesaid observations, Court held that the petition being limited to production of the person before the Court only, no interference to be made in other reliefs.

In view of the above, petition was disposed off.[Wajeed Khan v. Commr. of Police, W.P.H.C No. 92 of 2020, decided on 21-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: H. T. Narendra Prasad J. allowed the appeal stating that the Motor Accident Claim Tribunal has ample powers under Section 165 of the Evidence Act to summon a court witness and this power must be exercised proactively.

The facts of the case are such that the claimant who is student studying in Government Polytechnic College and while returning boarded a bus and when she was about to get down from the bus and while her one step was down the driver without any signal moved the bus and the girl fell down sustaining multiple and grievous injuries and was hospitalized thereafter for treatment. A claim petition was filed before the Tribunal and compensation was granted of Rs. 50,000. Being aggrieved by the meagre amount of compensation, instant appeal was filed.

Counsel for the appellants submitted that the claimant was about 18 years of age at the time of the accident and was studying in Govt. Polytechnic College but due to the accident, has sustained fractures and various other body injuries. It was further submitted that merely because the doctor was not examined the Tribunal has not granted any compensation under the ‘loss of future income’ and hence it is not justified in granting meagre compensation of Rs. 50,000 and therefore the appeal should be allowed.

Counsel for the respondents submitted that the claimant has not examined the treating doctor for assessment of disability and therefore the Tribunal on the basis of the materials available on record and wound certificate has granted just and reasonable compensation.

The Court relied on the judgment Shri Iqbalahmed v. Patel Integrated Logistics Ltd., ILR 2017 KAR 3045 wherein it was held that in cases where the claimants are unable to examine the treating doctor as witness, the Presiding Officer of the Tribunal shall play a pro-active role in ensuring the presence of the doctors by invoking the power under Section 165 of The Evidence Act.

The Court thus observed that the Motor Vehicles Act is a social beneficial piece of legislation which caters to the need of the claimants. The very scope and object of the Act while dealing with the claim, is to protect and promote the interest pf the claimants. The Act, tries to monetarily compensate the injured and the dependents of the deceased who find themselves in a difficult situation after suffering an accident.

The Court thus held that the matter be remanded back to the Tribunal with a direction to the Presiding Officer of the Tribunal to summon the treating doctor and in case the treating doctor is not available, the matter should be referred to the Medical Board for assessment of disability.

In view of the above, the appeal was allowed.[Kumari H.P. Shobha v. Managing Director, MFA No. 3668 of 2015, decided on 17-01-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: M. I. Arun J. dismissed the petition without interfering in the discretion exercised by the Appellate Court in the impugned judgment.

 The facts of the case are that an original suit was filed before Additional Civil Judge, Senior Division, Kolar for a decree of partition and separate possession of 1/4th share in the suit schedule properties. The respondents in the original suit i.e. petitioners in the present writ petition entered appearance through their advocate but failed to file the written statement despite several opportunities being given, pursuant to which decree was granted in favour of the plaintiff in the original suit. The judgment was later challenged by a delay of 3 years (condoned by Court) by an appeal which was later prayed for dismissal. Thereafter petition under Order 9 Rule 13 of Code of Civil Procedure i.e. CPC was filed for setting aside the impugned decree and was later dismissed vide order dated 27-06-2011.  The dismissal order was further challenged by an appeal which was allowed and the original suit was restored to file. Aggrieved by the said order, this revision petition has been preferred.

Counsel for the respondents submitted that the appearance in the original suit was entered through advocate alone and no written statement was filed or arguments were advanced, therefore they cannot be considered as ex parte and should not be entitled to prefer an application under Order 9 Rule 13 CPC.

Order 9 Rule 13 reads as under:

 In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation-
Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

 The Court observed that bare reading of the Explanation to Order 9 Rule 13 CPC makes it clear that when an appeal is preferred against the decree passed Exparte and when the same is disposed of, any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order 9 Rule 13 CPC for setting aside the Exparte decree. It means if the appeal has been disposed as withdrawal, in that event a petition under Order 9 Rule 13 CPC is maintainable.  It is immaterial whether the appeal was withdrawn reserving the liberty to prefer an application under Order Rule 13 of CPC or not.

In view of the observations, Court held relied on judgment G. Ratna Raj v. Sri Muthukumarasamy Permanent Fund Ltd., (2019) 11 SCC 301 and held that when the defendants entered appearance but did not contest the case, it will be treated as Exparte and the defendants can maintain a petition under Order 9 Rule 13 CPC.

In view of the above, the revision petition was dismissed.[M. Krishnappa v. Menasamma, 2020 SCC OnLine Kar 1648, decided on 23-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J., issued a writ of certiorari to quash the impugned orders and sent back the issue under challenge to the state for reconsideration in a time-bound manner, failing which penalty to be imposed on defaulting state officials.

The facts of the case is such that the petitioner is a registered Educational Trust grieving against the denial of permission for establishing a School for imparting education at the level of 1st to 8th Std in English medium, vide Endorsement dated 31-05-2019 issued by the 2nd respondent-DDPI, it’s Revision Petition challenging the same having been negatived by the Government vide order dated 3-2-2020.

Counsel for the respondent-State submitted that the petitioner-Trust has not produced the conversion order of the land in question to the non-agricultural purpose. It was further submitted that the text of the letter dated 02-03-2018 only indicates conversion potential of the land and not the conversion as such to educational purpose. It was also submitted that there is noncompliance of Rule 3(4) of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc) (Amendment) Rules, 2018 that reads as

“Every private body of persons desiring to establish and maintain an educational institution imparting pre-primary, secondary and higher secondary education or any part thereof shall own or have on lease for a minimum period of thirty years following minimum contiguous extent of land for the building and playground of the educational institution with permission from relevant authorities to use for educational purposes:”

 Counsel for the petitioners- Trust submitted that land having been converted to the non-agricultural user (industrial) by the Tumkur District Deputy Commissioner’s order dated 23-5-1986, now figures in Yellow Zone in the statutory Revised Master Plan [2031], formulated under the provisions of Sections 9 & 14 of the Karnataka Town and Country Planning Act, 1961, hence there is no requirement of one more formal conversion order that otherwise was warranted in terms of Section 95 of the Karnataka Land Revenue Act, 1964. It was further submitted that the Tumkur Urban Development Authority constituted under the provisions of the Karnataka Urban Development Authorities Act, 1987, vide letter dated 20-7-2018 has specifically stated that the land in question can be used for educational purpose in view of its inclusion in the Approved Comprehensive Development Plan (Revised- II)-2031.

 The Court observed that the land under challenge is taken by the petitioner-Trust on lease basis for a period of thirty years vide registered Lease Deeds is not in dispute; the said land having been converted to industrial purpose way back in May 1986 has no longer retained its agricultural character; such a converted land can be put to residential use because of inclusion per se in the Comprehensive Development Plan and residential purpose necessarily includes educational ones.

The Court further observed that the available facilities in the school building in question certainly do not fall short of those obtaining in any Government schools in the locality infact what is lacking should be pointed out to the petitioner so that it can be improved in a time-bound way; that exercise strangely has not been undertaken and hence it leaves an impression that somehow the powers that be, are working to ensure that this school shall not come up, for an indefinite period of time and that the reasons for the same remaining inscrutable, give scope for assuming ulterior motives.

The Court relied on Bhartiya Sewa Samaj Trust v. Yogeshbhai Amblal Patel, (2012) 9 SCC 310 and emphasized on enactment of Right to Education Act, 2009 and 86th Amendment to the Constitution which introduced Article 21A and Article 51A (k) of Constitution of India to remark:

“….the importance of these new provisions can be understood by the observations of the Apex Court to the effect that without Article 21A, the other fundamental rights are rendered meaningless; without education, a citizen may never come to know of his other rights; since there is no corresponding constitutional right to higher education, the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid..”

The Court further reprimanded and stated that the school education in the country inter alia suffers from the limitation of coverage; there are not enough number of government/public schools to cater to the societal need; a corresponding statutory duty is cast on the private schools to make the fundamental right to free education at the primary level, meaningful; if the applications for grant of permission to establish such schools are mindlessly declined, that would muffle the inner voice of the aforesaid constitutional amendments that are complemented by legislative instruments.

The Court before disposing off the petition observed that there exists a certain difference between a requisition for the grant of permission for founding a school and an application for the grant of excise license for opening a wine shop.

In view of the above, petition is allowed and impugned order stands quashed.[Nexgen Education Trust (Regd.) v. State of Karnataka,  2020 SCC OnLine Kar 1647, decided on 21-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj J., while allowing the present petition made significant remarks related to the application of RTI Act, 2005 and Right to seek information as a facet to Fundamental Right to freedom.

Brief Facts

This writ petition is filed under Articles 226 and 227 of Constitution of India praying to quash the Order dated 18-06-2020 passed by the respondent 2, Karnataka Information Commission and consequently dismiss the said case filed by the respondent 1.

 Issue

  • Whether a candidate who has appeared for the examination conducted by Public Service Commission can as a matter of right under the Right to Information Act, seek for copies of his evaluated answer scripts depicting the marks awarded?
  • Whether any condition/s precedent are to be satisfied, by an applicant, in order to seek for furnishing of evaluated and marked answer scripts?
  • Whether the exceptions carved out in the decision of the Supreme Court in Angesh Kumar’s Case is applicable in the present Case?
  • Whether the Information Commission acting under Section 19(8)(a)(ii) of the Right to Information Act, 2005 can remove/dismiss the Public Information Officer already appointed by the Public Service Commissions and appoint another Public Information Officer in place of such removed person?
  • Are there any qualification prescribed under the Right to Information Act for a person to be appointed as a Public Information Officer?

 Observations

With respect to each of the aforementioned issued, the Court categorically answered as follows;

  • Having regard to the decision of the Supreme Court in CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497, it is seen that where an application had been made to the Central Board of Secondary Education, the Supreme Court has held that it was the right of the candidate to seek for inspection of the evaluated answer books of such candidate, subject however to the condition that the names of evaluators had to be severed from such answer books.

 Para 66. “The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause 9(b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information (that is, information other than those enumerated in Sections 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of Governments, etc.,)”

      Institute of Companies Secretaries of India v. Paras Jain, 2019 SCC Online SC 764; “Thus it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the Appellant.”

The Court in addition to the above-cited precedents cited relevant provisions of the RTI Act, 2005.

  • The applicant has to satisfy the parameters laid down in the Angesh Kumar’s case that is, (1) The applicant has to be a candidate in the exam (2) The applicant can only seek for his own answer scripts (3) The applicant is required to make an application in the prescribed form (4) The applicant is required to make payment of the due amounts for furnishing of the information pertaining to his evaluated and marked answer scripts (5) The information sought for should not come within the exceptions/exemptions under Section of the RTI Act.
  • The decision of the Supreme Court in Angesh Kumar’s Case refers to an embargo as regard providing confidential information of a candidate to third parties, information as regards the persons who have corrected the answer scripts. In the present case what the petitioner is seeking for is his own evaluated answer script. He has not sought for any information relating to any third party or any confidential information, but has sought for information only pertaining to himself. The Court disallowing the restrictions set by the aforementioned case, in the present facts and circumstances, observed, “Freedom of Information being a fundamental right as also human right any person would be entitled to apply for and receive information especially pertaining to himself which is held by any public authority. The reasons for requesting such information may be myriad. Whatever the reasons may be, when any particular information sought for is relating to the person applying for such information, the authorities concerned cannot refuse the furnishing of such information.”
  • After interpreting the relevant provisions of the Act, the Court said, “It was impermissible for the 2nd respondent to have removed the existing Public Information Officer and or appoint another Public Information Officer in place of such removed person.”
  • With respect to issue 4, the Court said, “There being no qualification prescribed under the RTI Act or F.I. Act, the public Authority concerned can appoint anyone as the Public Information Officer of that Authority. Consequently, the appointment having been made by the Public Authority, the Information Commission cannot seek to remove such a person appointed and or appoint any other person or Authority as a PIO. The powers of appointment or removal are solely vested with the public Authority, where the PIO is to be appointed.”

Decision

While allowing the present petition in part, the Court held that an applicant under RTI Act, 2005, seeking information related to himself, shall have an unqualified right against the same and the precedent set by the Angesh Kumar case should be interpreted in consonance with the facts and circumstances of the case at hand.[Karnataka Public Service Commission v. Vinay Kumar Ramaiah, 2020 SCC OnLine Kar 1636, decided on 26-08-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Krishna S. Dixit and P. Krishna Bhat, JJ., held that,

“Though contracting a second marriage by a Muslim may be lawful, but it more often than not causes enormous cruelty to the first wife justifying her claim for divorce.”

The present appeal calls in question the Judgment and Decree whereby Family Court had dissolved the marriage between the husband and wife (respondent).

Brief Facts

Both the appellant and the respondent are Sunni Muslims. Respondent had filed a suit seeking a decree for dissolution of marriage on the grounds of cruelty and desertion alleging that she and her parents were manhandled by the appellant and his parents without any justification.

Further appellant contracted a second marriage with another lady when the respondent was carrying and that he had begotten a child from the said lady.

Appellant while defending the suit claim in addition to seeking a decree for the restitution of conjugal rights contending that he had always loved the respondent and contracted for the second marriage only because of the pressured mounted by his parents.

It was also added that Sheriat permits a Mohammaden to contract plural wives and such a conduct per se does not amount to cruelty, nor constitute a ground for opposing restitution of conjugal rights.

Analysis and Decision

Bench on perusal of the facts and submission declined to interfere in the matter.

The fact that the respondent-wife and her parents were manhandled by the husband’s parents has been supported by the evidentiary material and the very admission of the appellant himself.

It is a bounden duty of every husband to protect his wife in any circumstances.

In the present matter, what acts the appellant did, to protect his wife from the onslaught of his parents is neither pleaded nor proved; the contention that his parents are very influential & powerful is too feeble a justification for allowing the poor wife to be tortured.

“…institution of marriage is founded inter alia on the mutual support and security of spouses; if the husband fails to protect his wife from his own violent parents, the very trust of the wife is shaken and therefore she is entitled to oppose restitution of conjugal rights, lest she should undergo the same ill-treatment.”

Act of Second Marriage | Sheriat 

Further, the Court added that it is a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage; therefore, the proof of consent requires cogent evidence which is militantly lacking in this case.

Appellant’s plea that the Sheriat permits a Muslim to contract in marriage plural wives, may be legally true. Kerala High Court’s decision in Shahulameedu v. Subaida Beevi, 1970 K.L.T 4 has observed the right of a Muslim to practise polygamy under the Sheriat.

Section 2 of the Muslim Marriages Act, 1939 recognizes the ‘cruelty of conduct’ of the husband as a ground for the dissolution of marriage at the instance of aggrieved ‘woman married under Muslim law’.

Marital Cruelty

Courts have emphasised that in the backdrop of spousal relationship, words, acts or conduct constituting cruelty are infinitely variable with the increasing complexities of modern life; no attempt at defining cruelty is likely to succeed, fully; merely because an act is lawful, it does not per se become justifiable in married life.

Though contracting a second marriage by a Muslim may be lawful, but it more often than not causes enormous cruelty to the first wife justifying her claim for divorce.

Privy Council in Moonshee Bazloor Ruheem v. Shamsunnissa Begum, (11 MIA 551) observed with regard to marital cruelty that,

“Indian law does not recognize various types of cruelty such as ‘Muslim’ cruelty, ‘Christian’ cruelty, ‘Jewish’ cruelty, and so on, and the test of cruelty is based on the universal and humanitarian standards, that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health. The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first, and in the absence of cogent explanation the Court will presume under modern conditions that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the Court to compel her against her wishes to live with such a husband.”

Hence, in view of the above circumstances, the present appeal lacks merits and is liable to be rejected. [Yusufpatel v. Ramjanbi, MFA No. 201154 of 2018 (FC), decided on 17-08-2020]

Hot Off The PressNews

Karnataka High Court: The Division Bench of B.V. Nagarathna and Ravi Hosmani, JJ.,  granted an interim stay on the National Law School of India University (NLSIU) Amendment Act, 2020, by which 25% of reservation was introduced to the candidates from the State of Karnataka

Stay on 5% concession in marks for Karnataka students has also been put.

High Court directed the NLSIU to prepare a new list. Further, the bench stated that the list, however, will be a provisional one and will be subject to the final orders on the petitions.

NLSIU will have it as 120 seats. However, NLSIU is directed to prepare a merit list as per the impugned Amendment and the 5% concession. The same is to be kept it in a sealed cover and NLSIU is directed to publish only the merit list without the Amendment for now.

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J., quashed the criminal proceedings against 9 foreign nationals belonging to the Tablighi Jamaat while directing FRRO to issue exit permits with imposing a fine and the undertaking to not visiting India for next ten years.

Present petitions challenged the initiation of criminal proceedings inter alia under the provisions of the Foreigners Act, 1946 for the violation of VISAS in question.

Counsel for the petitioner contended that the initiation of criminal proceedings is on a wrong assumption of a jurisdictional fact namely the nature of VISA.

Further, he added that the State is proceedings on a demonstrably wrong premise that the VISAS in question are all Tourist VISAS when they are not.

Central Government holds the power to relieve the foreigners of the criminal action after accepting the fine amounts in terms of the extant norms and therefore, that benefit needs to be extended to the accused.

Decision

Bench observed that there is no dispute as to the 9 of the 16 accused being foreigners who gained entry to India on the basis of VISAS in question.

Section 14 of the Foreigners Act, 1946 criminalizes violation of the conditions of VISA and prescribes punishment of imprisonment that may extend to 5 years and also unlimited fine.

Hence in view of the above, the case thus only revolves around one factor namely the nature of VISA.

Accused’s travel documents show that the VISAS in question granted to them answer the description of and bear the nomenclature “e-Tourist Visa”.

“E-VISAS are granted only for the specified purposes and not granted for any other purpose, the missionary activities such as propagation of religion, participating in religious congregation and proselytization are not entitled as the permissible activities.”

Adding to the above, the Court stated that there is no specific prohibition in the Visas in question for preaching religious principles in the Tablighi congregation, hence what is not provided for in the Visa, is deemed to be impermissible.

Court held that there is absolutely no justification for the allegation of the petitioners that the criminal proceedings initiated by respondent-police, with the prejudice generated by the Media propaganda and for the statistical purpose of the State, there is no iota of material for entertaining such baseless grievance.

Bench laid down the following directions:

  • FRRO is directed to issue exit permits to the petitioners and ensure their exit from the country.
  • Petitioners shall pay the fine amounts and file an undertaking to the effect that they would not visit this Country within the next 10 years.[Farhan Hussain v. State, Criminal Petition No. 2376 of 2020, decided on 05-08-2020]
Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Aravind Kumar and M.I. Arun, JJ., addressed the matter wherein the notification issued by the Karnataka Examination Authority was questioned and stay on the same was sought.

What does the KEA Notification says?

KEA had issued the Time Table for conducting Common Entrance Test-2020 on 30-07-2020, 31-07-2020 and 01-08-2020.

High Court’s decision, dated 28-07-2020:

“During the last two weeks, everyday, more than 5,000 COVID-19 positive cases are being detected in the State and more than 2,000 cases are being detected in the city of Bengaluru. It is reported that more than 5,000 areas in the city of Bengaluru have been declared as containment zones apart from the containment zones in the other cities.

SOP of the State Government dated 17th April 2020 clearly lays down that no one is allowed to leave the containment zones. Moreover, the public transport will not be available. It is also contended that some students from other States will also be appearing for CET. It is true that the petitioners have approached the Court belatedly. However, there is a drastic change in the situation everyday. We, therefore, direct the State Government to immediately reconsider the decision of holding CET considering the aforesaid aspects.

The State Government shall place its decision on record tomorrow (29th July 2020).”

Petitioners proposed that the CET-2020 examination would result in pushing the candidates to the risk of COVID-19 and they being infected and students as well as their parents who are in the containment zones would not be permitted to come out of their homes as it would be contrary to the Standard Operating Procedure issued.

Bench on perusal of the facts and circumstances of the matter, cleared that it is not expressing or opining the cancellation or postponement of the CET-2020 examination.

In accordance to the SOP extended for conducting the CET-2020 examination, separate rooms have been provided for COVID-19 positive candidates and it is also stated that the candidates should inform COVID-19 status to the examination authorities well in advance.

Candidates have also been asked to produce a certificate certifying them that they are fit to write the examinations.

Court observes that it cannot lose sight of the fact that more than 1,84, 368 students have already downloaded the hall tickets for attending the examination scheduled to commence from 30-07-2020 which clearly indicates their interest and preparedness of the students who did not approach the Court.

Bench, however, made it clear that on no ground whatsoever, a candidate shall be prevented from attending the examination scheduled to be held from 30-07-2020 and all logistic support shall be extended by the State to ensure such of the candidates who require medical attention, transportation, food and other facilities.

Transportation to Candidates

State shall also ensure that all necessary instructions and information is issued to the authorities for ensuring that no candidate and/or parents and guardians accompanying them are prevented from proceeding from their place of residence/stay to examination centre on account of same being contaminated zone or otherwise.

On case to case basis State shall also provide transportation to candidates who may be in need of such transportation.

If a candidate fails to furnish that he/she is fit to write the examination, then the same can be a ground to prohibit them from taking up the examination.

Executive Director, Sri Venkata Raja submitted that the SOP would be uploaded to the web portal of Karnataka Examination Authority. [Abdulla Mannan Khan v. State of Karnataka, WP No. 8916 of 2020, decided on 29-07-2020]


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Breaking | Karnataka HC denies to stall Karnataka Common Entrance Test (KCET); CET to be conducted as scheduled

Hot Off The PressNews

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ  has dismissed a plea by a district judge challenging the appointment of a ‘junior’ judicial officer as an additional judge of the Karnataka High Court and seeking a stay on his swearing-in contending that it breaches the seniority rule.

The bench took up the matter through video conferencing at 10 am, just half an hour before the scheduled swearing-in of judicial officer Padmaraj N Desai as an additional judge of the Karnataka High Court and dismissed it saying the Court cannot entertain such plea at the eleventh hour. The Court said that it generally does not interfere with the President’s order on appointment of judges at the eleventh hour.

Shivamogga principal district judge RKGMM Mahaswamiji has challenged the appointment of judicial officer Padmaraj N Desai as additional judge of the Karnataka High Court on the ground of seniority. The plea of Mahaswamiji said,

“It is a case of superseding/passing over of a senior District judge (who was appointed on February 25, 2008, under reserve category ie., schedule caste) by junior district judge and recommendation of Respondent No. 11 (P N Desai) by the collegium of Karnataka High Court is unlawful, arbitrary, and in clear violation of statutory rules / administrative instructions contained in the official memorandum dated October 9, 1985, and involved bias of malafide and it clearly violated the functional rights guaranteed to the Petitioner under Articles 14 and 16 of the Indian Constitution.”

He had said that if the interim relief of staying the swearing-in ceremony of judicial officer Padmaraj N Desai as an additional judge of Karnataka High Court is not granted then the purpose of the petition will be defeated and it may cause failure of complete justice and clear infraction of fundamental rights guaranteed to the petitioner under Articles 14 and 16 of the Constitution.

According to the notification issued by the registrar general of the Karnataka High Court, Justice Shivashankar Amarannavar, Justice Makkimane G Uma, Justice Vedavyasachar Srishananda, Justice Hanchate Sanjeevkumar and Justice Padmaraj N Desai, were to take oath of additional judges of Karnataka High Court at 10.30 am.

(Source: PTI)