Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J.,  allowed the appeal and set aside the impugned orders of the First Appellate Court being unreasonable.

The facts of the case are such that the suit accommodation was of one Abdul Wahid Khan who sold the property to plaintiffs vide sale deed and got themselves registered in the Municipal Corporation Assessment Register. The said accommodation was rented as a shop to defendant 1 who was supposed to pay the monthly rent to the plaintiff after the sale which he failed to do upon which notice for eviction was sent to him. Thereafter a suit was filed under Section 12(1) (a), (c), (f) and (g) of the Chhattisgarh Accommodation Control Act, 1961 by the plaintiffs opposing which defendant stated that the plaintiff has no right over the title of the property under Section 43 and Section 64 of the Wakf Act, 1995 as it is a wakf property and Abdul Rehman was only a muttawali. The trial court granted a decree for eviction in favour of the plaintiffs being aggrieved by which civil appeal was preferred against the plaintiffs. The first appellate Court allowed both the appeals and dismissed the suit of the plaintiffs holding that the suit property is wakf property; therefore, the jurisdiction of the Civil Court is barred by Section 85 of the Wakf Act. Assailing this order, present second appeal was filed.

Issue 1: Rules of Evidence vis a vis Waqf Deed

Counsel for the appellants submitted that the first appellate Court has clearly erred in holding that the suit property is wakf property by relying upon Exhibit D/10 which is the copy of the alleged wakf deed as it is not primary evidence, being a copy made from the copy of the original document, and no foundation was laid for leading secondary evidence and hence Section 90 of the Evidence Act would not be applicable as for its applicability, the foundation has to be laid to lead secondary evidence.

The Court relied on judgment Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357 wherein it was held that

“17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts, is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act, 1872 by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.”

The Court observed that Section 65 of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of documents under the seven exceptional cases in which secondary evidence is admissible. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for n the section.

The Court thus held that the first appellate Court is absolutely unjustified in holding that the suit property is a wakf property, as such, the suit property has not been proved to be wakf property in absence of foundation for leading secondary evidence under Section 65 of the Evidence Act.

Issue 2: Jurisdiction of the Civil Court vis a vis Section 85 of the Waqf Act

It was further submitted that the instant suit was filed before the trial court on 06-10-1995 and the Wakf Act came into force w.e.f. 22-11-1995 and though defendant 2 was impleaded as a party/defendant in the suit vide order, since the suit had already been instituted prior to coming into force of the Wakf Act, 1995, therefore, by virtue of Section 7(5) of the Wakf Act, 1995, the suit is not barred by Section 85 of the Wakf Act.

Counsel for the respondents submitted that with regard to the question as to whether the suit property is a wakf property has to be decided only by the Wakf Tribunal after coming into force of the Wakf Act w.e.f. 22/11/1995, as such, the jurisdiction of the Civil Court is absolutely barred by virtue of Section 85 of the Wakf Act. It was further submitted that even if it is held that Section 85 of the Wakf Act, 1995 is not applicable, then also by virtue of Section 55C of the Wakf Act, 1954, the jurisdiction of the Civil Court is barred by virtue of Section 6A of the Madhya Pradesh Wakf (Amendment) Act, 1994.

The Court relied on judgment Taraknath v. Sushil Chandra Dey, (1996) 4 SCC 697, B.P. Pathak v. Dr Riyazuddin Haji Mohammad Ali, 1975 SCC OnLine MP 50, Sardarilal v. Narayanlal, 1979 SCC OnLine MP 25 and Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and observed that in the light of the provisions contained in Section 109 of the Transfer of Property Act i.e. TP Act and the principles of law laid down by their Lordships of the Supreme Court and the M.P. High Court in the aforecited judgments, it is quite vivid that Section 109 of the TP Act creates a statutory attornment and by virtue of the transfer of leased property, transferee ipso facto acquires all the rights of the lessor, and a new relationship is created between the transferee and the lessee.

Issue 3: Meaning of the term ‘if he is the owner thereof’

 The Court relied on judgments Apollo Zipper India Ltd. v. W. Newman and Company, (2018) 6 SCC 744 and observed the term ‘if he is the owner thereof’ used in Section 12(1) (f) of the Act of 1961 to in an eviction suit filed by the landlord against the tenant under the rent laws when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit. It was further held that the burden of proving the ownership in an eviction suit is not the same like a title suit.

The Court thus held that

Reverting to the facts of the present case in the light of the aforesaid meaning and definition of the term ‘if he is the owner thereof’ used in Section 12(1)(f) of the Act of 1961 and the principles of law enunciated by the Supreme Court and the M.P. High Court in that behalf, it is quite vivid that in the instant case, the plaintiffs purchased the suit property from the erstwhile owner Abdul Wahid Khan vide Exhibits P1(c) and P3(c) and thereafter became the owner of the suit property and also the landlords of defendant No. 1. Plaintiffs have clearly stated that they have no other alternative suitable accommodation in the township of Bilaspur and the suit accommodation is required bonafidely for starting his business, though a lengthy cross-examination has been made but nothing has been brought out to demonstrate that either their need of the suit accommodation is not bona fide or they have any other alternative suit accommodation in the township of Bilaspur to fulfill their bona fide need. As such, the plaintiffs have successfully proved the fact that the suit accommodation has admittedly been let out by the erstwhile owner Abdul Wahid Khan for non residential purpose to the tenant/defendant No. 1 and plaintiffs needs the suit accommodation for starting their business and he has no other alternative accommodation for carrying out their business in the township of Bilaspur, therefore, the ground under Section 12(1) (f) of the Act of 1961 is established. However, I do not find any ground established under Section 12(1) (c) and (g) for evicting the defendant 1 from the suit accommodation.”

In view of the above, appeals were allowed and impugned judgment was set aside.[Jaipal Choudhary v. Chhattisgarh Waqf Board, 2020 SCC OnLine Chh 1179, decided on 14-12-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K Thakur (Presiding Member), held that delivering the vehicle and withholding the documents of the said vehicle would amount to illegal delivery of the vehicle.

Factual Matrix

Respondent 1/ Complainant had purchased a Tata Spacio Car from the petitioner/OP 1. Complainant towards the purchase of the car had paid Rs 30,000 vide two cheques and Rs 8,100 separately for registration, insurance, service charges, etc., to OP 1. However, at the time of delivery, OP 1 had retained original documents of registration and insurance. OP1’s case was and continues to be that these were retained as the complainant had not paid the balance amount to him. Rs 1,15, 236 was yet to be paid after taking into account Rs 30,000 and the loan obtained from OPs 2 & 3.

In view of the above, the complainant had filed a consumer complaint alleging deficiency in service due to non-delivery of the original documents.

District Forum had accepted the complaint and directed OP 1 to send the original documents to the complainant. On appeal, State Commission also agreed with the District Forum and dismissed the appeal.

Petitioners Counsel submitted that an Ikararnama (agreement) was signed wherein complainant undertook to pay the balance amount later after taking delivery of the vehicle. On the said understanding, the vehicle was delivered to the complainant while the original documents such as registration, insurance were kept with OP 1. The case of OP-1 was that instead of paying the said amount and taking the original papers, the complainant filed a consumer complaint.

Hence, after allowing the above-stated complaint and appeal, the instant revision petition was filed.

Analysis and Decision

On considering the facts and circumstances of the instant case, the Commission stated that the revision petition cannot be sustained.

The vehicle was sold to the complainant, with the help of loan provided by OPs 2 & 3. The disputed point as per OP 1 was whether the complainant had paid the full amount to OP 1 or note. The related issue was whether the complainant was correct in alleging deficiency in service because OP 1 had retained the original documents after handing over the delivery of the car to him.

State Commission held that:

Once the vehicle has been delivered to the respondent 1, the appellant dealer cannot withhold the said documents on the plea of some dues still remaining to be paid. The delivery of the vehicle itself could have been delayed for that reason. Besides, since the purchase was financed by respondent 2 and 3, we see no reason how any amount could have been left unpaid and the appellant could still have delivered the vehicle in question to the respondent-complainant.

In the Commission’s opinion, the State Commission’s order had no material infirmity. Further, it was stated that if OP 1 had sold the vehicle and accepted the arrangement implicit in the Ikararnama, it had to bear the consequences.

“…as a responsible dealer, OP 1 could not have delivered the vehicle without the original documents. Such a delivery was illegal.”

No vehicle can legally ply without the above-stated documents.

Commission held that the factum of delivery without documents was illegal per se and certainly a deficiency in service. It is not important nor relevant as to what informal arrangement existed between OP 1 and the complainant. Whatever may have been the arrangement, it cannot justify the action of OP 1.

In view of the above discussion, the revision petition was dismissed. [Fauzdar Motors v. Lok Nath Kushwaha, 2020 SCC OnLine NCDRC 492, decided on 01-12-2020]

Advocates who appeared before the Commission:

For the Petitioner: Sanjay Sehgal, Advocate

For the Respondent:

For the Respondent 1: Nemo
For the Respondents 2 & 3: Ritu Raj, Advocate

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., granted ad-interim injunction and directed the to take down defamatory and malicious articles against Daniel Snyder.

Plaintiff sought exemption from filing the originals documents and attested affidavits in support of the plaint, statement of truth and the certificate under Section 65-B of the Indian Evidence Act.

Defendants are represented by the Counsel, S.D. Sanjay, Senior Advocate with Akshay Amritanshu, Advocate.

Present suit has been filed by the plaintiff in respect of the publishing of the defamatory and malicious publications levelling serious allegations against the plaintiff insinuating the plaintiff to the extent that he is facing allegations of sex trafficking and is associated with sexual predator Jeffrey Epstein.

Plaintiff states that the above-stated news articles are false, frivolous and baseless and freely available in the public domain.

The reputation of the plaintiff has also been lowered due to the said articles in the eyes of the public.

Plaintiffs counsel asked the defendants to take down the impugned URL’s/weblinks from their platform for which defendants stated that the needful has been done and no further action was required.

Further, the plaintiff stated that no action has been taken yet and the posts are still available due to which the present suit has been filed.

Court on perusal of the averments in the plaint and documents filed therewith opined that the plaintiff had made a prima facie case against the defendants and if no ad interim injunction is granted, the plaintiff would suffer an irreparable loss.

Defendants have been directed to:

  • take down, remove and/or block/restrict the allegedly defamatory articles.
  • disclose the basic subscription information in respect of the person/persons who had uploaded the allegedly defamatory articles on its platform.

Hence, till the next date of hearing an ad-interim injunction in favour of the plaintiff was granted.

Court listed the suit and application for 02-11-2020. [Daniel Snyder v. Eleven Internet Services LLP, 2020 SCC OnLine Del 1058, decided on 21-08-2020]

Hot Off The PressNews

UGC issues notice that no employing Higher Educational Institutions shall keep in their possession any teacher’s original academic certificates/documents which is akin to depriving them of their rights.
The public notice stated,
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University Grants Commission
[Public Notice dt. 11-08-2020]
Case BriefsHigh Courts

Manipur High Court: Kh. Nobin Singh, J. allowed civil revision petition questioning the validity and correctness of the order passed by the Civil Judge, Senior Division, Imphal East.

In the present case, a suit was instituted by the petitioner in a land dispute, without the originals of the documents being filed in support of his case. When he realised his mistake, he filed an application praying for leave to file original documents which was rejected on the ground that the sufficient cause for non-production of the documents was not shown and that the provision of law under which the application had been filed, was not mentioned in the application. The second application was filed by the petitioner stating that he simply signed the application drafted by his counsel and due to lack of communication and under the impression that since the copies of the documents had been filed, their originals would be allowed to be filed without any objection. The Court of Civil Judge, Senior Division dismissed the application on the ground that the application was barred by the principles of ‘res judicata’ being a successive application in the same court on the same facts. Aggrieved thereby, the petitioner filed the instant civil revision petition before the High Court.

The Court observed, “the earlier application had been rejected on technical grounds and not on merits.” Reliance was placed on the judgment of the Supreme Court in Kewal Chand Mimani v. S.K. Sen, (2001) 6 SCC 512, where it was held, “if the earlier suit had not been decided on merits, the mere dismissal thereof could be of no help in invoking the principles of res judicata.”

The Court held that the principles of ‘res judicata’ would not be applicable in the instant case as the same applies to a case “where the earlier application or for that matter, a suit or any petition has been decided on merit and that too, between the same parties.”

Thus, the petition was allowed and parties were directed to appear before the Civil Judge, Senior Division, Imphal West.[Moiranthem Basanta Singh v. Thockchom Mangol Singh, 2019 SCC OnLine Mani 63, decided on 02-05-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Mukta Gupta, J. dismissed a petition filed against the judgment of Metropolitan Magistrate acquitting the respondent for the offence punishable under Sections 468 and 471 IPC.

Petitioner and respondent were real brothers involved in a dispute over the subject property. Respondent had filed a suit for permanent injunction in capacity of his mother’s attorney. He filed a copy of Power of Attorney purportedly executed by his mother by which he was authorised to file the suit and also a Sale Agreement to show ownership of his mother. However, this suit was dismissed. Subsequently, respondent filed another suit, this time claiming the subject property was owned by his father.

The petitioner submitted that by taking contradictory stands in two suits, respondent demonstrated that he filed forged and fabricated documents before the Court. Per Contra, respondent contended that there was nothing on record to show that the documents were forged.

The High Court held that the trial court was right in acquitting respondent of the charges of forgery for purpose of cheating. It was stated, “taking two contradictory stands in two separate suits regarding ownership of the same property does raise a presumption that the averments in one of the suits are false but, mere presumption is not sufficient for convicting the respondent for an offence of forgery.” It was observed that mere non-production of original documents or not producing the mother in Court would not lead to proof beyond reasonable doubt of the alleged forgery. In such view of the matter, the petition was dismissed. [Harish Chander Verma v. Mohinder Kumar Verma, 2019 SCC OnLine Del 6752, decided on 09-01-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and U.U Lalit, JJ., in an order directed the police authorities to take in custody the directors of “Amrapali Group” as mentioned till the time all the documents as asked by the Supreme Court in its earlier order are handed over to the Forensic auditors.

The brief facts pertaining to the present order are that the Apex Court in its earlier order had repeatedly asked the “Amrapali Group of Companies” to hand over its original documents of accounts which they failed to do. In the earlier orders of the Supreme Court it was clearly stated and directed that all the account books, original documents etc. to be handed over to the forensic auditors, not only by the “Amrapali Group of Companies” but also those which were in possession of the statutory auditors.

The Supreme Court by looking at the non-compliance and violation of its earlier orders and justice being thwarted observed that “it is not only deliberate non-compliance of the order but effort is being made to fritter away the documents”. Therefore, the police authorities are directed to seize all the documents and to handover the documents to the forensic auditors after seizing them from the possession of 46 companies and their directors.

The Court also issued a notice to the contemnor-directors in order to show cause why proceedings for contempt be not initiated against them. It was again made clear that not even one single paper will remain with the auditors and directors of the Amrapali Group of Companies as all the documents to be handed over by the police to the forensic auditors.

The matter is listed for further hearing on 24-10-2018. [Bikram Chatterji v. Union of India, WP (C) No. 940 of 2017, Order dated 09-10-2018]