Case BriefsHigh Courts

Madras High Court: Dr G. Jayachandran, J., refused to pass a decree in favour of the plaintiff who relied on general admission of facts made by the defendant.

In the instant matter, it was stated that the plaintiff was engaged in the business of providing and arranging finance to various borrowers and had lent a loan to the first defendant company, which is an NBFC.

On the date of filing the suit, a sum of Rs 38,16,45,711/- was due and payable to the plaintiff. While advancing the loan, the second defendant provided personal guarantees for each of the facility agreements entered by the first defendant.

The second and third defendants were jointly and severally liable to pay the suit claim.

According to the plaintiff, since 2014, the transaction between the plaintiff and the first defendant company was regular without any default till the month of September 2020.

Further, it was submitted that the misappropriation of the fund by the Management of the Company came to light, when there was a default and when the Chief Financial Officer of the first defendant issued a Circular on 07-10-2020 disclosing diversion of the fund of the first defendant company by the second defendant as a consequence, criminal proceedings had been initiated by the plaintiff and the matter had been seized by the Directorate of Enforcement Wing.

Extracting a certain portion of the pleadings in the written statement, the plaintiff sought passing of a decree and judgment upon the said statement as admission.

Bench stated that the three admissions which were relied upon by the applicant were all general admissions and did not admit the suit claim.

Further, the Court added that the admission that fraud was committed per se will not entail the plaintiff for a decree as claimed in the suit. Whatever claimed in the suit has to be proved through evidence in the manner known to law and the portions of the admission relied upon by the plaintiff/applicant is a general admission of fact regarding the liability of the first defendant company and its inability to pay his creditors. The general admissions of fact cannot be construed as an admission of suit claim to pass a judgment and decree.

In view of the above application was dismissed. [Northern Arc Capital (P) Ltd. v. Sambandh Finserve (P) Ltd., 2021 SCC OnLine Mad 2577, decided on 5-07-2021]


Advocates before the Court:

For Applicant: Mr Anirudh Krishnan

For 1st Respondent: Mr. Supriyo Ranjan Mahaptra

For 2nd respondent: Mr Prashant Rajapogal

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. dismissed a petition filed against the order whereby the objections filed on behalf of the petitioner under Section 47 CPC (questions to be determined by the Court executing decree) were rejected.

The respondent herein filed a suit against the petitioner under Section 13 read with 27 of the Hindu Marriage Act, 1955 seeking a decree of divorce as well as the return of stridhan. The trial judge granted the decree of divorce and directed the petitioner to return the stridhan as claimed by the respondent. The decree came for execution and notice was issued to the petitioner. He filed objections under Section 47 CPC. The said objections were signed by his Advocate. The affidavit supporting the objections was also signed by the Advocate. The trial court rejected the objections on the ground that the petitioner had neither signed the objections nor filed an affidavit in support thereof.

The High Court observed that the objections under Section 47 CPC constitute pleadings. Court stated that, “Under the provisions of CPC and under the Delhi High Court Rules, pleadings ought to be signed by the client and cannot be signed merely by the counsel. Further, the objections ought to be either verified or be accompanied with the affidavit of the client. Even in the rules applicable to the Executing Court and the Family Court, the pleadings have to be signed and verified by the client and not just by the counsel. This is clear from a reading of Order VI Rule 14, Order VI Rule 15, CPC and Rule 4, Part C, Chapter 1, Practice in the Trial of Civil Suits, Instructions to Civil Courts in Delhi (Vol. I of High Court Rules and Orders).

The Court stated that, pleadings have to be verified by the parties. Pleaders are entitled to sign the same but not in substitution of the clients. The signatures of the Pleader would be only in addition to that of the client.

The Court also noted a settled position that advocates, who act on behalf of their clients, cannot verify the pleadings on behalf of their clients. This is clear from a perusal of the Bar Council of India Rules, which prohibit an advocate from accepting a brief in which he has reason to believe that he will be a witness. “Under certain circumstances, giving of evidence could be directed in proceedings under Section 47 CPC. Accordingly, if an advocate signs the affidavit in support of the objections, then the advocate may be called for cross-examination as a witness, and such a situation would be in clear violation of the Bar Council of India Rules.”

In such view of the matter, Court did not find any infirmity in the impugned order, and resultantly the appeal was dismissed.[Shyamji Mehrotra v. Shipra Mehrotra, CM(M) 1315 of 2019, decided on 04-09-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Biswanath Rath, J. entertained the writ petition challenging the order passed by the learned trial Court, directing for recounting of votes of the elected candidate.

The instant writ petition was filed referring to the pleadings in the election dispute which arose before the trial court. The said petition was filed by the elected candidate who pleaded to set aside the order of the trial court confirming the decision of the Election Tribunal for recounting of votes involving the petitioner.

The petitioner contended that in absence of any counter claim for the recounting of the votes of the petitioner by the defeated candidate, votes in favour of opposite party should only be recounted and the rejected votes should be examined. The petitioner wanted the court to interfere in the impugned order and to set aside the same.

The respondent relied on the direction passed by the tribunal for recounting of the votes of the petitioner i.e the elected candidate and hence, did not wish to file any counter claim against the elected candidate.

Perusing the records, the Court opined that, there was no counterclaim involving the allegation for counting of votes in favour of the petitioner and as it was not pleaded in the written statement the tribunal must not had decided the particular issue i.e recounting of the votes of the elected candidate. The Court held, that the Election Tribunal has exceeded its jurisdiction by traveling beyond the scope of litigation involved therein. The Court further directed the Tribunal to conclude the dispute of the miscellaneous case by giving both the parties an equal opportunity of hearing.[Ritarani Jena v. Sumaatee Jena, 2019 SCC OnLine Ori 173, Order dated 02-04-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Dr Pushpendra Singh Bhati, J., dismissed the petition filed for mainly amendment of the issues framed in the pleadings at a later stage.

The facts of the case were that the respondent-landlord had filed an application under Section 18(2) of the Rajasthan Rent Control Act, 2001 before the Rent Tribunal, for recovery of arrears of rent. The petitioner filed a reply to the said application under Section 18(2) of the Rajasthan Rent Control Act, 2001 and denied the existence of the landlord-tenant relationship between him and the respondent. This started the series of litigation that followed thereafter between the parties. During this, the petitioner filed an application under Section 21 of the Rent Control Act, 2001 for amendment of the issues. The petitioner also made a request to delete issues framed earlier and prayed for framing of a new issue. Also, he filed an application under Section 21 read with Section 11 of the Court Fee Act and under Order 7 Rule 11 CPC with the averment that the respondent in the rent application had although prayed for arrears of rent along with 18% interest per annum, but did not pay the appropriate court fee. The argument advanced by the respondent was that the eviction suit was filed in the year 2010 and had been going on for almost nine years, and thus, at that stage when no material change in the original pleadings were made, then permitting the petitioner to file new applications just for the purpose of delaying the proceedings was inappropriate.

The Court held that the parties were satisfied with the issues so framed at that juncture, and therefore, since no material change was reflected in the pleadings, at a belated stage, the petitioner was barred to contend that the issues need to be re-framed. The petition was thus rejected. [Umesh Jhamb v. Parkash Rani, 2019 SCC OnLine Raj 326, Order dated 12-04-2019]

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Sindhu Sharma, JJ. dismissed an order passed by the Single Judge in respect of determination of seniority.

The brief facts of the case are that the appellants claimed that they were appointed as Junior Engineers vide an order and claimed to be senior to the private respondents herein. The final seniority list of Junior Engineers (Civil) Degree Holders was filed in this regard. It was urged that in reference to the final seniority list so issued, promotions were made to the post of Incharge Assistant Engineers as Assistant Executive Engineers on officiating basis in their own pay and grade, which included the appellants as also the private respondents.

The names of the appellants as also the private respondents figured in the aforementioned Government order, as per their respective seniorities. The appellant contended that by virtue of the government order the seniority of respondents was illegally and arbitrarily determined over and above the appellants and they were placed as Incharge Executive Engineers in utter violation and contravention to the seniority of the appellants. A writ petition came to be filed by the appellants/petitioners before the Writ Court, seeking certiorari in regard to this Government Order.

The petition, however, was dismissed with the direction that the seniority list is to be reframed.

The Court held that the Writ Court did not address all the issues placed by the appellants/petitioners before the Writ Court and was disposed of with a general direction without determining the issue as to whether the placement of respondents over and above the petitioners/appellants was correctly done in terms of the impugned Government order or not. The order was set aside allowing the parties an opportunity to complete the pleadings. [Hari Bhushan v. State of J&K, 2018 SCC OnLine J&K 1032, decided on 31-12-2018]