Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. upheld the order passed by the Rent Controller whereby an appeal was filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, challenging the order whereby an application filed by respondents under Order 22 Rule 3 read with Section 151 of Code of Civil Procedure for impleadment as petitioners/landlords in place of original tenant was dismissed.

Chamba Mal Bhagra, the original tenant, had filed a petition for eviction on two grounds, firstly, that the building had become unfit and unsafe for human habitation and, secondly, that there was an urgent need for rebuilding the same. After his death on 24-10-2018, an application under Order 22 Rule 3 CPC was filed on behalf of his grandsons Vishal Sood and Vikas Sood, on the basis of a Will. In the starting, the aforesaid application was resisted by the tenants on the ground that the said Will was not placed on record, but the impugned referred the document. As per the Will placed on record, the building in dispute was bequeathed in favour of respondents i.e. Vishal Sood and Vikas Sood.

The tenants argued that pleadings to evict the building made by Chamba Mal Bhagra cannot apply anymore as he died during the pendency of the trial. He further argued that in view of the death of the original landlord, an application filed by the applicants/respondents was not maintainable.

The Court heard both the parties and found no illegality or infirmity in the impugned order, and therefore did not interfere with the findings of the Rent Controller. The Court did not consider the arguments put forth by the petitioner because the claim regard to the building being bona fide required for personal use, should have been decided in the main petition and not in the application for impleadment. Moreover, issue with regard to availability of ground if bona fide requirement for personal requirement, after death of original landlord, is no more res Integra in view of the judgment laid down by the Supreme Court in Shakuntala Bai v. Narayan Das, (2004) 5 SCC 772, where it was held that even if landlord dies during pendency of the petition, the eviction notice/order cannot be said to have lapsed. Apart from this, the building was unfit and unsafe for human habitation, and therefore, the Rent Controller below had rightly concluded that cause of action qua aforesaid ground can be inherited by the successors of the original landlord. The petition was dismissed by the Court.[Rikhi Ram Amar Nath v. Vikas Sood, 2019 SCC OnLine HP 1547, decided on 23-09-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. contemplated a petition filed under Article 227 of  Constitution of India for quashing and setting aside the order passed by Civil Judge of dismissing the application under Order 6 Rule 7 i.e. for ‘Amendment of Pleadings’ read with Section 151 of CPC.

Factual matrix of the case was that the plaintiff maintained a suit for permanent prohibitory injunction, and sought to restrain the defendants from interfering in any manner, taking forcible possession, installed the electric pole and also restrained them from putting the electrical wires and changing the nature of suit land.

The defendants contested that the electric poles erected on the side of the road near the boundary of the land of the plaintiffs and in the presence of the parties. It was submitted that the electric pole, which had been installed by the Electricity Department will not cause any hindrance to the land of the plaintiffs and after the electricity wire was attached, any obstruction or hindrance was not caused to the plaintiffs.

During the pendency of suit, plaintiffs maintained an application, under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, for amendment of the plaint on the grounds that the defendants in connivance with each other forcibly erected poles and laid wires on it but, the said application was dismissed by the learned Civil Court.

Kulwant Chauhan, counsel for the petitioners submitted that the amendments were required to be allowed in order to properly adjudicate the case it was necessitated for the reason that after the filing of the present suit, defendants had erected the electric pole on the suit land and now, it was required to be added. In support of his arguments, he had relied upon the judgment in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 and contended that the application can be filed at any stage of the suit and the learned Courts are also required to allow the same, to meet the ends of justice. It was held that, “the same is not applicable to the facts and circumstances of the present case, a serious prejudice would be caused to the respondents in case, the application is allowed, at this stage, as the factum is with respect to the laying of electric lines under the Electricity Act and plaintiffs have waited for five years, even after having knowledge of erection of the electric pole in making the application for amendment.”

On the contrary, the counsel for the defendants Pawan Gautam and Suman Bhitmta, contested that petition was not maintainable, as the application was filed quite late before the learned Court below. He argued that as per the petitioner himself, electric pole erected in the year 2011 and now, the application had been filed, at the belated stage. He further argued that there was no case made out in favor of the petitioners to allow the present petition.

The Court found that the instant petition was maintained for an injunction and to restrain the defendants. It was further noted that the defendants had installed the pole and further an application for amendment was maintained in the year 2016. It was noted that though the application is filed after a long span of time but the question raised in the instant petition was different and the same cannot be allowed at the present stage of proceedings. It was held that “From the perusal of record which shows that the present suit has been maintained on 19.10.2011, at that time, defendants have started digging the pit for installation of electric poles and are threatening to install the same over the suit land. At that time, the averments of the plaintiff have been contested by defendants No.4 to 8 by filing written statement on 27.12.2011 by alleging that the electric poles were already erected in the month of May, 2011 i.e. on the road side near the boundary of the land of the plaintiff.”

If it was presumed that the electric poles were erected after the institution of the suit land in 2011, what prevented the plaintiff from moving an application for amendment of the plaint has not been mentioned by the applicant in his pleadings? It was settled law that the provisions of Order 6 Rule 17 have to be applied more liberally qua the written statement viz-a-viz plaint. Hence the petition was dismissed as the amendments were sought after 5 years and was sleeping over his rights.[Kishori Lal v. Darshan Kumar, 2019 SCC OnLine HP 1401, decided on 30-08-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-wife against the order of the Family Court whereby her application under Order 9 Rule 13 read with Section 151 CPC for setting aside of the ex-parte decree of judicial Separation passed in favour of the husband was rejected.

Marriage of the parties to this matter ran into rough weather and the husband filed a petition under Section 10 of the Hindu Marriage Act, 1955 seeking Judicial Separation froths wife. The petition proceeded ex-parte against the wife and a decree of Judicial separation was passed. Thereafter, the wife filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the said decree,  claiming that she had never been served. The application was, however,  rejected by the Family Court. Aggrieved thereby, the wife filed the present appeal.

S.S. Panwar, Advocate represented the appellant-wife. Per contra, Navin Kumar Chaudhary, Advocate, appeared for the respondent-husband.

The High Court noted that the trial court dealing with the petition seeking the relief of Judicial Separation had recorded that the notice of the petition issued by the ordinary process was refused by the father of the appellant. It was also noted that the summons despatched by registered cover was refused by the appellant herself and the said refusal on her part to accept service of the notice, was deemed to be an effective service upon her. The court observed that the evidence produced by the appellant was not sufficient to establish that she was in the hospital and had no opportunity to refuse the process of the Court as contended by her.

It was further noted that the address of the appellant being correct, the Family Court rightly drew a presumption of deemed service as contemplated under Section 27 of the General Clauses Act, 1897, to conclude that the appellant was duly served and had failed to contest the petition.

Accordingly, finding no error in the impugned order, the High Court dismissed the appeal.[Ritu v. Sandeep Kumar Prashar, 2019 SCC OnLine Del 9940, decided on 03-09-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. allowed a petition for setting aside the order of dismissal of a civil suit, passed by the Court of Civil Judge (Senior Division).

In the instant case, the petitioner herein had filed a civil suit for specific performance of a contract which, vide an order dated 25-02-2014, stood dismissed in default for non-prosecution by the Court of learned Civil Judge (Senior Division). Aggrieved by the same, the petitioner in September 2014, filed an application under Order IX, Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 praying for recalling of the said order. This application along with the application filed under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the application for recalling the order, stood rejected by the Trial Court. The Trial Court while dismissing the said plea of the petitioner held that the application was filed for setting aside the order of dismissal of the suit in default after about seven months and no cogent explanation was given as to why the application could not be filed within a reasonable period. Hence, the present petition.

Counsels for the petitioner,  Vivek Singh Attri and Abhinav Purohit, argued that the impugned order was not sustainable in the eyes of law as it was harsh. Also, the findings returned therein were not borne out from the record of the case. On the other hand, learned Counsels for the respondents, Ajay Sharma and  Anandita Sharma, argued that there was no merit in the present petition as the trial court had rightly dismissed the applications which were filed after an inordinate delay and that too without any cogent explanation.

The Court termed the order of the trial court as “harsh” and observed that “Though, the application for setting aside the order vide which the suit was dismissed in default was filed after about seven months but such a delay cannot be said to be an inordinate delay”.

It was further opined that “the Court has to understand that whenever applications are filed by the parties for the purpose of explanation of delay, the Court cannot accept that each and every word contained in the application per se would be substantiated by the applicant, because it is common knowledge that majority of contents of such like applications are dictated on legal solicitation so given to the party concerned.” Taking a subtle view on such cases, the Court said, “In these circumstances, the Court has to be slightly sensitive and in case the delay is not that inordinate and the other party can be monetarily compensated, then the Court rather than following a hyper-technical approach has to follow an approach which is more humane and justice-oriented.”

In the light of the above, the Court quashed and set aside the impugned order.[Rama Nand v. Kuldeep Bansal, 2019 SCC OnLine HP 623, decided on 10-05-2019]

Case BriefsHigh Courts

Madras High Court: The Bench comprising of N. Kirubakaran, J., in an appeal filed against the judgment and decree of Motor Accidents Claims Tribunal (MACT), observed that,

People are dying or injured due to drunken driving but also the dependants of those persons are lost because of this “dangerous liquid” that too being sold by the Government for the purpose of money violating Article 21 of Constitution of India. It is sad to note that the Government itself is doing this unwarranted business only for the sake of raising revenue.”

“70% of the accidents are caused only because of either drunken driving or by intoxication.

In the present case, the circumstances which led the Court to observe the above are, present appeal has been preferred by Transport Corporation against the judgment and decree of MACT. Tribunal had fixed the negligence on the part of the driver of the appellant Transport Corporation bus and awarded Rs 5,69,000 for legal heirs of deceased allegedly earning Rs 15,000 per month.

Facts are that, the deceased was trying to cross the road when he was knocked down by the bus belonging to the appellant Transport Corporation, which was driven rash and negligently.

Tribunal found that the accident was caused because of rash and negligent driving of the Transport Corporation bus. The award of Rs 5,60,000 granted by the tribunal was challenged in the Court.

Contentions, as presented by the counsel for appellant Mr Prabhakaran, was that, deceased emerged from TASMAC shop after taking liquor without noticing the traffic, he crossed the road and dashed himself against the bus. Therefore the accident was invited by a drunken man and therefore, no negligence could be fixed on the driver of the Transport Corporation, Further, Mr R Karunanidhi counsel for respondents supported the award and sought enhancement of compensation.

Conclusion

“How liquor spoils many families and takes away precious lives of numerous persons is very well exhibited in this case.”

High Court while concluding its decision stated that, no evidence was on record to show that the deceased was under the influence of alcohol. Also, nothing in the post-mortem certificate was present in regard to the presence of alcohol in the deceased’s stomach. Tribunal had rightly relied upon the post-mortem certificate to show that the deceased was not under intoxication.

Finding of the Tribunal is modified to the effect that the driver was negligent to the extent of 85% only. Court following the Supreme Court judgment of Syed Sadiq v. United India Insurance Co. Ltd., (2014) 2 SCC 735 stated that since the deceased was 40 years old, 50% should be added towards future prospects and fixed the monthly income at Rs 9,750. Consortium enhanced to Rs 40,000 as per the Supreme Court’s judgment in National Insurance Co. Ltd. v.  Pranay Sethi, (2017) 16 SCC 680.

High Court further in an endeavour to do justice by invoking Order 42 Rule 33 CPC and Section 151 CPC and Article 22 of Constitution of India enhanced the compensation to Rs 13,00,000. In view of the above, the appeal was dismissed. [T.N. STC v. Ammavasi, 2019 SCC OnLine Mad 817, Order dated 11-03-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Vinod Goel, J. dismissed a revision petition filed against the order of Civil Judge (II), Central Districts, Tis Hazari courts by which respondent’s application under Order 9 Rule 1 read Section 151 CPC was allowed.

Respondent was a defendant in the subject civil suit. He filed an application before Civil Judge for setting aside the ex-parte judgment and decree passed in the suit. The application was allowed by order of Civil Judge which was challenged by the petitioners (plaintiffs) in the present revision petition.

J.H. Jafri, Advocate for the petitioners admitted that the cost of Rs 10,000 subject to which the ex-parte judgment and decree was set aside was accepted by the counsel appearing for the petitioner.

Noting such facts, the High Court was of the view that, “the petitioners cannot ‘blow hot and cold’, ‘fast and loose’ or ‘approbate and reprobate’. Where the petitioners have knowingly accepted the benefits of an order, they cannot be permitted to assail the same. This rule is applied to do equity.” In the present case, as the petitioners had already accepted the costs, therefore they were estopped by their act, conduct and acquiescence to continue the petition. The revision was dismissed. [Mustaqeem v. Faiyaz, 2019 SCC OnLine Del 6751, dated 21-1-2019]