omnibus notice under dishonour of cheque is not valid

 

Supreme Court of India

Suman Sethi vs Ajay K. Churiwal And Anr. on 2 February, 2000

Equivalent citations: AIR 2000 SC 828, 2000 (1) ALD Cri 550

Author: S Phukan

Bench: G Nanavati, S Phukan

ORDER
S.N. Phukan, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated 3-10-1997 passed by the Calcutta High Court in Criminal Revision No. 1611 /97. By the impunged judgment, the High Court set aside the order of the Metropolitan Magistrate-16th, Calcutta passed in Case No. C/1661/96.
3. Briefly stated the facts are as follows :

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Non discolsure in income tax return (Dishonour of cheque)

Dis-honour of cheque. Presumption as to legally enoforceable date is rebutted as complainant failed to disclose the amount in his income tax return or books of account.

Bombay High Court

Sanjay Mishra vs Ms.Kanishka Kapoor @ Nikki on 24 February, 2009

Bench: A.S. Oka
 Citation: 2010(1)ALD(Cri)2, 2009(5)BomCR464, 2009CriLJ3777, 2009(4)MhLj155

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back dating of asseessment order

M/S. Deepak Agro Foods vs State Of Rajasthan & Ors on 11 July, 2008

Where the High Court was satisfied that the assessment order had been back-dated and directed that a fresh order be passed by a different AO and the assessee filed an appeal arguing that the assessment proceedings should have been declared null and void, held:

(a) All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. However, exercise of jurisdiction in a wrongful manner cannot result in a nullity – it is an illegality, capable of being cured in a duly constituted legal proceedings.

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Whether affidavits sworn before Notaries can be accepted as evidence before court?

The provisions of Civil Manual, Chapter XXVI,
para 506 read thus -
506. The person who may administer
oaths to deponents must be duly
authorised under Section 139 of the Civil
Procedure Code to do so.
It would thus mean that the persons who may
administer oath to the deponents are to be the persons
who are authorized under Section 139 of C.P.C. to do
so. Therefore, the result is obvious that the Notaries
are authorized to administer oath to the deponents.11
The affidavits which are to be under the Code, can be
sworn by on administering the oath to the deponents
by any Notary appointed under the Notaries Act and
under Order 18, Rule 4 of the C.P.C., there is no bar
requiring to exclude the affidavits sworn before the
Notaries for taking them on record as an examination
in chief. Thus, such affidavits sworn before Notaries
can be accepted as evidence by the Civil Court. The
cumulative sequel would render the impugned order to
be incorrect and illegal at law. As such liable to be
quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5388/2008

Prashant Vs. Muncipal Council Bhadravati

Coram : Dongaokar
Dated: : 2nd APRIL, 2009.
Citation: AIR 2009 BOM 144

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Burden of proof is on income tax department that assessee has concealed his income

The gist of the offence under s. 28(1)(c) is that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, and therefore, the department must establish that the receipt of the amount in dispute constitutes income of the assessee. If there is no evidence on the record except the explanation has been found to be false, if does not follow that the receipt constitutes his taxable income.
Supreme Court of India

Commissioner Of Income Tax West ... vs Anwar Ali on 29 April, 1970

Equivalent citations: 1970 AIR 1782, 1971 SCR (1) 446

Bench: Grover, A.N.

CITATION:
1970 AIR 1782 1971 SCR (1) 446
1970 SCC (2) 185
ACT:
Income-tax Act (11 of 1922), s. 28-Penalty proceedings- Whether of a criminal nature-Onus on department show amount concealed as income.
HEADNOTE:

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Burden of proof is on income tax department to prove that amount standing in the name of wife is belonging to assessee

Where an amount stood in the name of the assessee's wife, the onus of proof was not on the assessee but was on the Income-tax Department to show by, at least, same materials that the amount did not belong to the assessee's wife but to the assessee himself.

Mangilal Rungta vs Commr. Of Income-Tax on 4 March, 1955

Equivalent citations: AIR 1955 Pat 366, 1955 (3) BLJR 263

Author: K Sahai

Bench: Ramaswami, K Sahai

JUDGMENT
Kamla Sahai, J.
1. In this case, the assesses is a Hindu undivided family consisting of M. L. Rungta (Mangilal Rungta) and his sons. Three of those sons are M. G. Rungta (Madan Gopal Rungta), B. N. Rungta) (Biswanath Rungta) and S. R. Rungta (Sitaram Rungta). The questions which arise for decision in this case relate to the income from Jugasalai Electric Supply. Co. The assessee's case is that shares are held in the Electric Supply Co. as follows:
M.L. Rungta (as representing the Hindu undivided family) .... as. -/4/- M. G. Rungta .... -/4/- B. N. Rungta .... -/4/- S. R. 'Rungta .... -/2/- An Outsider .... as. -/2/-
2. The assessment years in question are 1945-46, 1946-47, 1947-48 and 1948-49. But the assessment in respect of each of the assessment years does not have to be separately considered because the point involved is the same. The Income-tax Officer held that the shares allotted to M. G. Rungta, B. N. Rungta and S. R. Rungta in the Jugasalai Electric Supply Co. were all held by the Hindu undivided family in their names, as the funds said to have been contributed by these coparceners of the family to the Electric Supply Co. were the funds of the Hindu undivided family. The assessee took an appeal to the Appellate Assistant Commissioner of Income-tax in respect of each of the assessment years but the appeals failed. The assessee then took a further appeal in respect of each of the assessment years to the Income-tax Appellate Tribunal and the Tribunal, by its order dated 3-7-1952, held that the share standing in the name of Sitaram Rungta was held by him in his individual capacity. It, however, dismissed the appeals in respect of the shares held in the names of M. G. Rungta and B. N. Rungta.

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Burden of proof is on assessee to prove source of undisclosed income

It is the assessee who is in full possession of facts regarding the true character of the amounts and the sources from which they v/ere derived and Section 106 of the Evidence Act casts on him the burden of proving what lies within his special knowledge.

S. Kumaraswami Reddiar vs Commissioner Of Income-Tax on 20 March, 1959

Equivalent citations: AIR 1960 Ker 9

Bench: V Iyengar, A Chandy

1. This is a reference under Section 66 (2) of the Indian Income-tax Act, by the Income-tax Appellate Tribunal, Madras Bench. The question referred is :
"Whether on the facts and in the circumstances of the case, an addition of the sum of Rs. 25,856 having been made to the profits and gains of the business carried on by the assessee, the further addition of the sum of Rs. 17,402 representing the total of the credits in the books and deposits in the banks in the account year, is lawful".
The assessee, S. Kumaraswamy Reddiar, is a wholesale and also retail piecegoods merchant carrying on business at Alleppey and Quilon. In computing the profits on the assessee's business for the assessment year 1123 M.E. the Income-tax Officer found that the accounts maintained by the assessee were unreliable and the profits had therefore to be estimated. Accordingly he made an addition to the book version of the profits to the extent of Rs. 26,418 in respect of the Alleppey business and Rs. 11,438 as regards the Quilon business. He further found that certain deposits in banks and certain advances entered in the books of account at the Head Office totalling Rs. 83,926 were only secret profits. The petitioner was assessed on this amount also. In appeal by the petitioner to the Appellate Assistant Commissioner, Trivandrum, the estimated addition made by the Income-tax Officer was upheld but only to the extent of Rs. 14,418 for the business at Alleppey and Rs. 11,438 for Quilon together making up Rs. 25,856.

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Divorce-Adultery-Standard of Proof-Principle-Direct evidence is not imperative

PETITIONER:

EARNEST JOHN WHITE

                Vs.

RESPONDENT:

MRS.  KATHLEEN OLIVE WHITE AND OTHERS

DATE OF JUDGMENT:

10/03/1958

BENCH:

KAPUR, J.L.

BENCH:

KAPUR, J.L.

BHAGWATI, NATWARLAL H.

GAJENDRAGADKAR, P.B.

CITATION:

 1958 AIR  441                       1958 SCR 1410

ACT:

Divorce-Adultery-Standard of Proof-Principle-Direct evidence

if  imperative-Finding of fact when can be interfered  with-

Divorce Act (IV of 1869), ss. 14 and 7.

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Golden rules for appreciation of evidence of husband and wife regarding income of husband for grant of maintenance to wife

Mr. Marshal contended that it is initially for the plaintiff-wife to prove that the income of the defendant-husband is 1,700/-dollars per month. It is, no doubt, true that under the provisions of Ss. 101 to 104 of the Evidence Act, the plaintiff has to prove her case, but the proof which is demanded from the party is a proof which can be obtained by the plaintiff with reasonable care and diligence. The plaintiff is not supposed under the provisions of S. 104 of the Evidence Act to prove a thing which, under the circumstances, is impossible for the plaintiff to prove, especially when the facts regarding the income are within the special knowledge of the defendant. Mr. Marshal is not in a position to deny that his client is not aware of his own income or that the father of the defendant is not in the knowledge of the income derived from the properties in India managed by him. When the question regarding the proof of the income of the other contesting party is to be determined, in such circumstances the plaintiff can only give the figure on guesswork and not the exact figure. It is also the duty of the plaintiff to make every effort to get that information. In the instant case the plaintiff has done everything that was possible for her within her financial resources to extract the information regarding the income of the defendant-husband. She has made specific averments in her plaint and evidence. She has also made application under O. 11, R. 12 of the Code for production of documents and particulars. She has stepped into the witness box and submitted herself to searching cross-examination. No doubt, she has admitted that the income of the husband which she has stated is her guesswork. It is a matter of common knowledge that in U. S. A. Engineers and Doctors ate the most affluent class having lucrative income. The defendant must be possessing at least a Master's Degree in Engineering. He must, therefore, either be doing business or job, and the income of such a highly qualified engineer in U. S. A. is between 30,000/- to 50,000/- dollars per year, i.e. 2,000 to 4,000/- dollars or more per month. The plaintiff-wife has taken the minimum income and has given a very modest figure of 1,700/- dollars per month, which is, no doubt, in way guesswork. The plaintiff must have heard all these things from her relatives. Her father is also coming from a middle class family with little education. The parties are staying in a remote village of Bulsar District. The defendant-husband has not produced the documents which are in his possession and relevant for the decision of the suit. Neither the defendant nor his power of attorneys have come forward to give evidence, because they knew that if they step into the witness-box, they shall have to give reply in respect of the income of the defendant. The defendant has not filed any affidavit regarding the particulars demanded by the plaintiff-wife, but has caused his brother and not his father to file affidavit on his behalf, which is totally vague. Under the circumstances, the Court will be justified in raising adverse inference that the defendant is in possession of the documents regarding his income and has not produced the same, because it was within his knowledge that if the same are produced, they will help the case of the plaintiff.

Gujarat High Court

Maganbhai Chhotubhai Patel vs Maniben on 19 November, 1984

Equivalent citations: AIR 1985 Guj 187, (1985) 1 GLR 374, (1985) 1 GLR 374

Bench: S Shah

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Material ingredients of offence punishable under S 498A of IPC

The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498(A).

Supreme Court of India

Girdhar Shankar Tawade vs State Of Maharashtra on 24 April, 2002

Equivalent citations: AIR 2002 SC 2078, 2002 (1) ALT Cri 360

Bench: U Banerjee, Y Sabharwal

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Whether Police can release accused on Bail in Non-Bailable Offence?

 Therefore, in our view, Section 437 of the Code does not empower the police officer to release any person accused of, or suspected of, the commission of any non-bailable offence, unless he is satisfied that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Accordingly we dispose of the writ petition holding that the police officer can release any person accused of, or suspected of, the commission of any non- bailable offence only when the conditions under Section 437 (2) of the Code are met and the power to grant bail to such accused person, where there are no such grounds, is exclusively available to the Court.

ANDHRA PRADESH HIGH COURT

K. Upender Reddy vs Director General, Acb & Another on 4 April, 2003

SRI JUSTICE BILAL NAZKI 
 MR. V. ESWARAIAH MR G. Pedda Babu

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Whether Illegitimate child can claim right in ancestral property?

 It is further pleaded that defendant No. 3 Gopal could not have become owner of the land S.No. 250 under the previous compromise decree because he had no right being illegitimate son and hence, the exchange deed executed on his behalf by Vasant is also null and void. It is pertinent to note that plaintiff Kantabai did not claim any share during life time of said Vasant. The concurrent findings of the trial Court and the first appellate Court are that original plaintiff No. 2 -Kantabai is the first wife of deceased Vasant and that he performed second marriage with defendant No. 4 Shantabai from whom defendant No. 3 Gopal was born as the illegitimate son. There is no dispute about the fact that both the suit lands (S. No. 493 and S.No. 250) were the ancestral properties in the hand of defendant No. 1 Manohar. Whether he effected partition and gave those lands to deceased Vasant and Gopal is not the material question for consideration at this stage. There cannot be duality of opinion that being illegitimate son, original defendant No. 3 -Gopal could have no right of inheritance in respect of the said ancestral properties. The legal position is amply clear in view of Shantaram Tukaram Patil and Anr. v. Smt.Dagubai Tukaram Patil and Ors. . A Division Bench of this Court held that the

property to which an illegitimate child can lay claim must be the separate property of the parents and not the coparcenary property in which the parent has a share.

Bombay High Court

Subhash S/O Eknathrao Khandekar ... vs Sow. Prayagabai W/O Manohar ... on 20 August, 2007

Equivalent citations: AIR 2008 Bom 46, 2008 (1) MhLj 908

V.R. Kingaonkar, J.

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statment of accused recorded by police during investigation can be relied in civil proceeding and supratnama proceeding

the protection under
section 162, Cr. P. C. is granted to the accused and that protection is unnecessary in any proceedings other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceedings or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a Police Officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Evidence Act.

 

Bombay High Court

Mr. Prakash Vernekar S/O Shri ... vs State Of Goa, Through Public ... on 14 June, 2007

Equivalent citations: 2007 CriLJ 4649

JUDGMENT
N.A. Britto, J.
1. The challenge in this revision petition is to the Order dated 27.10.2006, by which the learned Additional Sessions Judge, Panaji, has ordered the gold pieces, of different weights, (MO.7 to 14) which were seized from the possession of the petitioner, a goldsmith, to be returned to respondent no.2, the first informant in criminal case no.205/1996/C.

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Procedure to be followed for annulment of deed

Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him.

Supreme Court of India

Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors. on 29 March, 2010

Bench: R.V. Raveendran, R.M. Lodha

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When plaintiff is entitled to get decree for partition?

Law presumes jointness. The defendant who denies the same has to dislodge the presumption. Separate living in the same village in different houses, joint record with 'specification of shares in the record of rights arid separate payment of house taxes in a given case may not be compatible with a theory of partition by metes and bounds and may lead to the conclusion that the parties are living and cultivating lands separately for convenience.

 In the ultimate analysis and in disagreement with the learned courts below, I hold that the presumption of jointness of a Hindu Mitakshara family to which the parties belong was not rebutted by evidence of a prior partition by metes and bounds by the respondents. Although the parlies were living separately in mess and cultivation yet that was for convenience and to avoid family disputes. There has not so far been a partition by metes and bounds of the suit lands. The plaintiff is, therefore, entitled to a preliminary decree for partition of the suit lands in respect of his 1/3rd share therein.

Orissa High Court

Brajananda Pradhan vs Sachidananda Pradhan And Ors. on 1 August, 1989

Equivalent citations: AIR 1990 Ori 29

Bench: K Mohapatra

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Leading Supreme Court judgment on proving contradiction and omission in evidence

A statement made to the police but not reduced to writing, could not be used for any purpose, not even for contradiction. It was incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made before the police, should be treated as contradictions. An omission in the police statement could amount to a statement and be used as a contradiction only when (i) it was necessarily implied from the recital or recitals found in the statement, (ii) it was negative aspect of a positive recited in the statement or (iii) when the statement before the police and that before the Court could not stand together. It was for the the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, whether the recital intended to be used for contradiction was one of the nature indicated above.

 The word " contradict " has various 'Meanings, and in the Oxford English Dictionary it is stated as " To be contrary to in effect, character, etc. ; to be directly opposed to go counter to, go against " as also " to affirm the contrary of; to declare untrue or erroneous; to deny categorically " and the word " contradiction " to mean " A state or condition of opposition in things compared ; variance; inconsistency, contrariety ". In Shorter Oxford English Dictionary, " contradict " is said to mean "To speak against; to oppose in speech ; to forbid ; to oppose; to affirm the contrary of; to declare untrue or erroneous; to deny to be contrary to go counter to and go against and " contradiction " to mean " A state of opposition in things compared; variance; inconsistency". The meaning given to the words ,contradict " and " contradiction " in these Dictionaries must at least include the case of an omission in a previous statement which by implication amounts to contradiction and therefore such an omission is a matter which is covered by the first proviso to s. 162 and questions in cross. examination can be put with respect to it in over to contradict the witness. It is difficult to say as an inflexible rule that any other kind of omission cannot be put to a witness in order to contradict him, when the proper foundation had been laid for putting such questions. The words " to contradict him " appearing in s. 145 of the Evidence Act must carry the same meaning as the words " to contradict such witness " in s. 162 of the Code. In a civil suit, where the provisions of s. 162 of the Code of Criminal Procedure have no application, would it be correct to say that only questions concerning omissions of the kind suggested by our learned brother could be put and none other ? We cannot see why a question of the nature of cross-examination regarding an omission with respect to a 

matter which the witness omitted to make in his previous statement and which, if made, would. have been recorded, cannot be put. The facts and circumstances of each case will determine whether any other kind of omission than that referred to by our learned brother could be put to a witness in order to contradict him. It would be for the Judge to decide in each case whether in the circumstances before him the question could be put. The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. Not only is it the right of the accused to shake the credit of a witness, but it is also the duty of the Court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule. We pause to look at the matter from another angle. We shall assume that the interpretation which the State claims should be put upon s. 162(1) is correct and compare the respective rights of the accused and the prosecution. According to this interpretation, the accused has no right of cross- examination in respect of the contradiction. This means that no question can be put about the previous statement but only the part in which there is a contradiction can be brought to the witness's notice and his explanation, if any, obtained. In other words, there is only " contradiction " and no more. But when the accused has used the statement to contradict the witness-it may be only on one point-what are the rights of the prosecution ? The prosecution can use any part of the statement in the reexamination not only to explain the I contradiction' but also to explain any matter referred to in the cross-examination of the witness. If I contradiction ' does not include the right of cross- examination, the right of the prosecution must necessarily extend to reexamination in respect of any other matter needing explanation in the cross-examination at large. Thus, the accused cannot ask a single question of the nature of cross-examination but because he sets up a I contradiction' in the narrow sense, the prosecution can range all over the previous

statement and afford the witness a chance of explaining any matter in his cross-examination by re-examining him which right includes the possibility of asking leading questions with the permission of the Court.

Thus, the accused makes a I contradiction' at his own peril. By making a single I contradiction', the accused places the entire statement in the hands of the prosecution to explain away everything with its assistance. One wonders if the legislature intended such a result, for it is too great a price for the accused to pay for too small a right. Fortunately, that is not the meaning of s. 162 of the Code of Criminal Procedure, and it is not necessary to read the word " cross-examination " in the proviso in a sense other than what it has.

The right of both the accused and the prosecution is limited to contradictions. It involves cross. examination by the accused as to that contradiction within s. 145 of the Indian Evidence Act and reexamination in relation to the matters I referred to in the cross-examination of the witness'. The prosecution cannot range at will to explain away every dis- crepancy but only such as the accused under his right has brought to light. In our opinion, reading the section in this way gives effect to every part and does not lead to the startling and, if we may say so, the absurd results which we have endeavoured to set out above.

Supreme Court of India

Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959

Equivalent citations: 1959 AIR 1012, 1959 SCR Supl. (2) 875

Bench: Sinha, B P.

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Judgement is Conclusive Evidence Of Its Existence, Date and Legal effect as Distinguished from accuracy of decision Rendered

 The recitals in the judgment cannot be used as evidence in a litigation between other parties. The principle is that all judgments are conclusive of their existence, as distinguished from their truth; judgments as public transactions of a solemn nature, are presumed to be faithfully recorded. Every judgment is, therefore conclusive evidence, for or against all persons, whether parties, privies or strangers, of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered: in other words, the law attributes unerring verity to the substantive as opposed to the judicial portion of the record.

Bombay High Court

Gulabrao Maruti Bhagat vs Bhagwan Nana Bhagat on 8 December, 2000

Equivalent citations: 2001 (3) BomCR 484

Bench: D Chandrachud

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succession certificate in respect of price of kidney

Two kidneys of deceased were removed by hospital authority with consent of wife and mother.kidney was removed when deceased was alive for price of 270000/.said amount is debt. succession certifcate can be granted in respect of said money.

Beena vs Rajamma on 28 June, 2002

ORDER
A. Lekshmikutty, J.
1. Challenging the order in I.A. No. 2784 of 2001 in O.P. (Succession) No. 112 of 1996 on the file of the Second Additional Sub Court, Thiruvananthapuram, this revision petition is filed by the petitioner. The petitioner filed the O.P. for grant of Succession Certificate for the debts due to her deceased husband who died on a road traffic accident in Saudi Arabia. The respondent is the mother of deceased Ajithkumar. The parties are Hindus governed by the provisions of Hindu Succession Act in the matter of Succession. The petitioner and the respondent are the only legal heirs of deceased Ajithkumar. While the O.P. was pending, the petitioner filed a petition to withdraw the same. It was disallowed and against the order, the petitioner filed C.R.P. No. 1614 of 2000 before this Court. This Court remanded the matter to consider whether the respondent is entitled to the grant of Succession Certificate. The dismissal of the withdrawal petition was confirmed by this Court. Thereafter, the petitioner filed I.A. 2784 of 2001 regarding the maintainability of the Q.P. The court below found that the O.P. (Succession) is maintainable. Against the said order, this C.R.P. is filed by the petitioner.

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Withholding of material document amounts to fraud on court

A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.

Supreme Court of India

S.P Chengalvaraya Naidu vs Jagannath on 27 October, 1993

Equivalent citations: 1994 AIR 853, 1994 S

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Leading Supreme Judgment on capitalisation of interest by banks

(1) Subject to a binding stipulation contained in a voluntary contract between the parties and/or an established practice or usage interest on loans and advances may be charged on periodical rests and also capitalised on remaining unpaid. The principal sum actually advanced coupled with the interest on periodical rests so capitalised is capable of being adjudged as principal sum on the date of the suit.

(2) The principal sum so adjudged is 'such principal sum' within the meaning of Section 34 of the Code of Civil Procedure, 1908 on which interest pendente lite and future interest i.e. post-decree interest, at such rate and for such period which the Court may deem fit, may be awarded by the Court.

(3) Corporation Bank Vs. H.S. Gowda and Anr. and

Bank of Baroda Vs. Jagannath Pigment & chem have been correctly decided.

It is expected henceforth from the banks, bound by the directives of the Reserve Bank of India, to make an averment in the plaint that interest/compound interest has been charged at such rates, and capitalised at such periodical rests, as are permitted by, and do not run counter to, the directives of the Reserve Bank of India. A statement of account shall be filed in Court showing details and giving particulars of debit entries, and if debit entry relates to interest then setting out also the rate of, and the period for which, the interest has been charged, On the Court being prima facie satisfied, if a dispute is raised in that regard, of the permissibility of debits, the onus would be on the borrower to show why the amount of debit balance appearing at the foot of the account and claimed as principal sum cannot be so accepted and adjudged. This practice would narrow down the scope of controversy in suits filed by banking institutions and enable an expeditious disposal of the suits, the issues wherein are by and large capable of being determined by documentary evidence. RBI directives have not only statutory flavour, any contravention thereof or any default in compliance therewith is punishable under sub-section (4) of Section 46 of Banking Regulation Act, 1949.

Supreme Court of India

Central Bank Of India vs Ravindra And Ors. on 18 October, 2001

Citations: AIR 2001 SC 3095, 2002 (50) BLJR 207

Bench: A Anand, K Thomas, R Lahoti, N S Hegde, S Variava

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false statement

first affidavit stating that file is not in existence. second affidavit saying that file was  not traceable at the time of first affidavit.it amount to deliberate false statement.

Supreme Court of India

Centre For Public Interest ... vs Union Of India & Ors on 19 October, 2000

dri

CASE NO.:

Appeal (civil) 2485 of 1999.

BENCH:

S.N.Hegde, S.S.M.Quadri

JUDGMENT:

SANTOSH HEGDE, J.

Being aggrieved by the judgment of the High Court of Delhi dated 25th January, 1999 made in C.W.P.No.3020/97, the writ petitioners therein have preferred this appeal by leave of this Court. Respondent No.1, Government of India (GOI), took a policy decision in the year 1992 to offer some of its discovered oil fields for development on a joint venture basis. Its decision in this regard was that medium sized oil fields will be offered for development under the joint venture with the participation of the Oil and Natural Gas Commission (ONGC)/the Oil India Limited (OIL) while the small sized oil-fields will be offered for development without the participation of the ONGC/OIL. This policy decision was taken on the ground that the country was facing foreign exchange crisis and there was lack of resources to fully develop these oil-fields. The GOI was also of the opinion that the domestic crude production was declining and there was a need to augment its production. With the said policy in mind, the GOI invited bids for 12 medium sized oil fields and 31 small sized oil fields. In response to the invitation of the GOI in regard to the two medium sized oil-fields, namely, Panna and Mukta, as many as 8 consortia offered their bids and after preliminary technical evaluation of those bids, discussions were held with the bidders and based on such discussions, the GOI shortlisted respondent Nos. 4 and 5 and another consortium of Hyundai Heavy Industries, Essar Oil Limited, Dan Offshore and Albion International. Sometime in October 1993, these two consortia were called for further negotiations by the Negotiating Committee to finalise the contract and after such negotiations and evaluation of the bids on the recommendations of the said Committee, the bid of respondent Nos. 4 and 5 was accepted in February 1994 and a Letter of Award (LOA) was issued to the said consortium. As per this award, the oil-fields - Panna and Mukta - were agreed to be given to the said consortium with a participating interest of 30% each to respondent Nos.4 and 5 in association with the ONGC which was given a share of 40%. The said contract provided that the GOI had the first option to purchase up to 100% of the production of oil from these fields at an international market price to be determined in accordance with the provisions of the contract. It further provided that the international price shall be determined with reference to one or more freely traded international market prices which bear resemblance to the produce crude in terms of standard parameters such as gravity, sulphur content, yield etc. which are critical to the market value of the crude. The contract price to be paid to the contractor had to be the price of Brent (DTD) crude with a discount of $ 0.10 cents per barrel. Brent is said to be a similar sweet crude which is freely traded in the international market. The actual contract termed as Profit Sharing Contract (PSC) was signed by the GOI and the consortium of respondent Nos. 3, 4 and 5 in regard to Panna and Mukta oil-fields on 22.12.1994. The appellants herein challenged the awarding of this contract before the High Court of Delhi on 26th July, 1997 seeking the following reliefs :-

(a) direct a thorough criminal investigation into this deal by an appropriate agency to be supervised by a senior independent person such as a retired Judge of a High Court or the Supreme Court; and (b) direct the Respondents No.1 and 2 to take further follow up action by way of criminal prosecution and departmental proceedings against officials who have played a corrupt or improper role in the award of the contract for the Panna Mukta oil fields; and (c) order the cancellation of the contract for the Panna Mukta oil fields to the joint venture led by RIL Enron.

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extract of bank account signed by agent of bank is sufficient

Radheshyam G. Garg vs Safiyabai Ibrahim Lightwalla on 19 January, 1987

Equivalent citations: AIR 1988 Bom 361, 1987 (3) BomCR 459

Bench: A Agarwal

ORDER
1. This petition has been filed by the original defendant tenant seeking to challenge the judgments and decrees of of both the lower Courts decreeing the suit of the respondent-plaintiff for possession under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act").
2. The premises which are subject matter of the dispute in the present petition consists of one room in Ever Ready Cottage situate at Virar, taluka Vasai, District Thane. The said premises were let to the defendant in the year 1958 at a monthly rent of Rs. 25/-. The said premises originally belonged to one Asmabai who on 1st Aug., 1975 executed a registered sale deed in favour of her three daughters, who were plaintiffs in the suit for possession. The present suit came to be filed on 2nd Oct., 1975 by the plaintiffs, the daughters of said Asmabai, after they had given to the defendant their notice of attornment dated 21st August 1975 wherein they had informed the defendant that the premises had been transferred by Asmabai in their favour by a registered document. The said notice alleged that the defendant had acquired alternate suitable residence inasmuch as he had been allotted railway quarters at Andheri and he had shifted as far back as in Jan. 1965. It was also alleged that the defendant had unlawfully sub-let the suit premises.

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agreement to surrender to maintaince is against public policy.hence does not bind party

Patna High Court

Rajesh Kochar vs Reeta Kumari on 18 March, 2002

Equivalent citations: 2002 CriLJ 3357, I (2003) DMC 284

Bench: S N Pathak

ORDER
1. This revision is directed against the order dated 19.2.2001 passed in Misc. Case No. 16/1997/426A/2601 under Section 125, Cr.P.C.
2. By the aforesaid order, the Judicial Magistrate, 1st Class, granted maintenance allowance of Rs. 500/- to the opposite party, Reeta Kumari, of this revision. The husband of Reeta Kumari is the revisionist before this Court, The concise facts which are relevant of this revision are that earlier there was a matrimonial suit between the parties (Suit No. 220/1996) before the Family Court Lucknow, which, by its order dissolved the marriage of the parties under Section 13-B of the Hindu Marriage Act (Annexure-1). At page 16, copy of the joint petition filed by the parties before the aforesaid Family Court has been tagged, which shows that the opposite party Reeta Kumari had agreed that she will not claim any maintenance allowance from her divorced husband. On the basis of this agreement, it was submitted by the revisionist's lawyer, that Reeta Kumari was no longer entitled to claim any maintenance from him. Moreover, the judgment of the Family Court was the judgment of the Civil Court and, therefore, it must prevail upon the Magistrate in seisin of the case at Gaya. It was further submitted that under Sections 7 and 8 of the Family Courts Act, the case under Section 125, Cr.P.C. was barred. In support of his contention, the revisionist's lawyer referred to the decisions as reported in P. Jayalakshmi v. V. Ravichandran, I (1992) DMC 273=1992 Cri. LJ 1315, (Andh. Pra.); Sadasivan Pillai v. Vijaya Lakshmi, 1987 Cri. LJ 765 (Ker.); Bhagwant Singh v. Surjit Kaur, 1981 Crl. LJ 151 (Punj. & Har.); Linga Gounder v. Raman, 1978 Cri. LJ 469 (Mad.).

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Precaution to be taken by court while issuing directions

The direction issued by the Court is in the nature of a command or authoritative instruction which contemplates the performance of certain duty or act by a person upon whom it has been issued. The direction should be specific, simple, clear and just and proper depending upon the facts and circumstances of the case but it should not be vague or sweeping.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1706-1708 OF 2011
(Arising out of S.L.P. (Crl.) Nos. 364-366 of 2010)

Arun Kumar Aggarwal vs State Of M.P.& Ors. on 2 September, 2011
Bench: G.S. Singhvi, H.L. Dattu

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Whether demand Of Separate residence by wife amounts to cruelty?

 The petitioner in her evidence, except giving slap and not
giving food did not narrate any specific incident of physical cruelty
against the respondent. It is oral uncorroborated evidence.  In fact she
gave admission and showed readiness to stay  with the respondent
and his mother. She did not like the company  of his sisters. House of
the respondent is of 12 rooms. Thus, separate residence for the
appellant and respondent could be possible,  if the respondent had
accepted the offer. At any rate, as the  demand of separate residence
cannot be considered as cause of cruelty,  for the same reason, nonacceptance of such demand by the husband also cannot be a cruelty.
These are choices given by the spouses to each other and expression
of choice and refusal of the choice itself is not a cruelty. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.77/2003

Mrs.Surbinder Kaur Sandeep Sood, Vs. Sandeep Rajkumar Sood,

Coram- A.M.Khanwilkar and
   Mrs.Mridula Bhatkar,JJ

Pronounced On- 8 December, 2011.
 (Per Mrs.Mridula Bhatkar,J.):

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How to appreciate evidence of Child Witness?

Precautions which must be borne in mind in evaluating the evidence of a child-witness 

In Bhojraj v. Sitaram, AIR 1936 PC 60, it was pointed out that 

"The real tests are how consistent the story is with itself, how-it-stands the test of cross-examination and how far it fits in with the rest of the evidence and circumstances of the case."

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Misconduct in government office:lack of devotion to duty

Government officers are required to act within the standards of conduct prescribed in their respective manuals. The decorum which is to be maintained is quiet often of high standards in the wake of national prestige resting upon the actions of these personnel. In this wake it is not unoften that we come across discharge of a government officer on account of misconduct. However what is misconduct is quiet often left undefined. It might be a simple breach of a rule or may be violation of the spirit rather than the letter. 

In a recently reported decision [2010 (171) DLT 556] a Division Bench of the Delhi High Court has explained the meaning underlying "misconduct" as quiet often used in governmental quarters and has also clarified its ambit. While reflecting that the term would have to be examined in the context of the particular service one was referring, the High Court indeed laid out the generic scheme underlying the concept.

The High Court inter alia observed as under;

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Whether Sale deed signed by only vendor is valid?

Indian Evidence Act, 1872 – Sections 91 and 92 – It is not open to a party to a document to prove by oral evidence a variation in the terms of the document or as to the amount of consideration shown in the document. 

Indian Evidence Act, 1872 – Sections 91 and 92 – Parole evidence given for the purpose of proving variation in the amount of consideration shown in the document would be inadmissible under S.92 of the Evidence Act. 

Indian Evidence Act, 1872 – Sections 91 and 92 – The bar under S.91 and S.92 of the Evidence Act will not apply for proving want of consideration or failure of consideration. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - Sale deeds only contain the signature of the vendors thereunder and not the respective vendees - That will not render those sale deeds invalid as contracts for want of mutuality on the ground that they are only unilateral instruments. All that is necessary is to ensure that the essential parts of a modern conveyance namely, the “parties, the recitals, testatum, operative words, parcels, habendum and testimonium” are present in the instrument. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - There is no scope any more for anybody to contend that an agreement for sale or a sale deed (deed of conveyance) executed by the prospective vendor or the vendor, as the case may be, is a unilateral document or instrument and is not a contract which can be enforced in law. 

Transfer of Property Act, 1882 – Sections 5 and 54 – Indian Contract Act, 1872 – Section 10 - An agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.

IN THE HIGH COURT OF KERALA

A.F.A. No. 59 of 1994

Decided On: 13.01.2012

 Vasu @ Bhaskaran Vs.  Parukutty Amma & Anr.

Hon'ble Judges/Coram:
V. Ramkumar and K. Harilal, JJ.

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visa violation, misdeeds can not be given premium

Friday, 16 March 2012Susan Nathan Vs. State of Kerala
(2012) 243 KLR 952
IN THE HIGH COURT OF KERALA AT ERNAKULAM

MANJULA CHELLUR, Ag. CJ & P.R. RAMACHANDRA MENON, J.
..............................................................................
W.A.No.356 of 2012
.........................................................................
Dated this the 16th March, 2012
Head Note:-
Foreigners Act, 1946 - Sections 14(a) and (b) - Visa Violation - Contention that registration of a crime as a ground to permit continue in India - Held, anybody who wants to overstay in India, contrary to the relevant provisions of law and conditions of Visa, can stay back once he/she commits some or other offence, so that a Crime will come to be registered, enabling the person to have the desired result. Right to continue in the country on valid terms is one thing and offence committed warranting penalty to be imposed, is a different thing. A person who has violated the law, cannot be given any premium for his/her misdeeds.

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guidelines for deciding stay application

UTI Mutual Fund vs. ITO (Bombay High Court)

S. 220(6): Guidelines laid down on how stay applications should be dealt with

The assessee, a mutual fund, was a beneficiary of a trust named India Corporate Loan Securitisation Trust which was set up for securitising a loan of Rs.300 crores by issue of Pass Through Certificates (PTCs). The assessee had subscribed to the PTCs and its beneficial interest was proportionate to the PTCs subscribed. The Trust received interest of Rs.21.49 crores in respect of a loan and distributed the income to its beneficiaries in their respective shares. The AO passed an assessment order on the trust in the capacity of an AOP. Though a stay application was filed, the AO, without disposing of the stay application, demanded that 50% of the demand be paid. He also directed the assessee to pay Rs. 9.63 crores on the ground that it was a member of the AOP (Trust) and was jointly and severally liable in respect of the demand against the AOP. The assessee filed a stay application which was disposed of by the AO on 9.3.2012 (received by the assessee on 13.3.2012). On 12.3.2012, the AO attached the assessee’s bank account u/s 226(3). The assessee filed a Writ Petition pointing out that the action had been in pursuance of the CBDT Chairman’s letter dated 7.2.2012 promising postings commensurate with tax recovery. HELD by the High Court:

The Revenue has made an unfortunate and hasty attempt to make a recovery of the demand without enabling the assessee to take reasonable recourse to the remedies available in law. The assessee filed a stay application before the AO on 7.3.2012 and moved the CIT on 9.3.2012. Before service of the order rejecting the stay application, the assessee’s bank account was attached on 12.3.2012. Administrative directions for fulfilling recovery targets for the collection of revenue should not be at the expense of foreclosing remedies which are available to assessees for challenging the correctness of a demand. The sanctity of the rule of law must be preserved. The remedies which are legitimately open in law to an assessee to challenge a demand cannot be allowed to be foreclosed by a hasty recourse to coercive powers. AOs & appellate authorities perform quasi-judicial functions under the Act. Applications for stay require judicial consideration. Rejecting such applications without hearing the assessee, considering submissions and indicating at least brief reasons is impermissible. In KEC International 251 ITR 158 guidelines regard to the manner in which applications for stay should be disposed of have been laid down. Unfortunately these guidelines are now being breached by the Revenue. In Coca Cola India 285 ITR 419 the conduct of the Revenue was deprecated. In attaching bank accounts even before communicating the order passed The following guidelines should be borne in mind for effecting recovery:

1. No recovery of tax should be made pending

(a) Expiry of the time limit for filing an appeal;

(b) Disposal of a stay application, if any, moved by the assessee and for a reasonable period thereafter to enable the assessee to move a higher forum, if so advised. Coercive steps may, however, be adopted where the authority has reason to believe that the assessee may defeat the demand, in which case brief reasons may be indicated.

2. The stay application, if any, moved by the assessee should be disposed of after hearing the assessee and bearing in mind the guidelines in KEC International;

3. If the Assessing Officer has taken a view contrary to what has been held in the preceding previous years without there being a material change in facts or law, that is a relevant consideration in deciding the application for stay;

4. When a bank account has been attached, before withdrawing the amount, reasonable prior notice should be furnished to the assessee to enable the assessee to make a representation or seek recourse to a remedy in law;

5. In exercising the powers of stay, the ITO should not act as a mere tax gatherer but as a quasi judicial authority vested with the public duty of protecting the interest of the Revenue while at the same time balancing the need to mitigate hardship to the assessee. Though the AO has made an assessment, he must objectively decide the application for stay considering that an appeal lies against his order : the matter must be considered from all its facets, balancing the interest of the assessee with the protection of the Revenue.

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Standard of proof in matrimonial Cases

Muhammed Davood Vs. Hafsath 
Citation : AIR 2010 Kerla 21

Evidence act Section 3. Suit for recovery of money and ornaments handed over to bride at the time of marriage. Court cannot insist on documentary evidence to prove transaction. It is not possible to look at photographs and ascertain precise quantum of ornaments. But oral evidence of bride and her father getting support broadly from such document like photograph taken on date of marriage can be accepted. The transaction was between spouses. A Court unless it is naive and hyper technical should not in such circumstances insist on documentary evidence to prove the transaction. Section 3 of Evidence act which must be reckoned as the Bible of court of facts and demands that court must adopt the the standard of a prudent person informed of all the realities ok raw life. A prudent person cannot expect that there will be documents to prove such payments made by father in law to his daughter in law or son in law.

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Whether Cause of action will accrue to individual if a legal right is for benefit of general public?

A plan sanctioned in favour of the defendant in conformity with municipal rules would not justify defendant's trespass on plaintiff's land or his interference with plaintiff's right of easement or customary right. Plaintiffs can equally challenge any public nuisance committed by the defendant.
Class of persons protected. An individual can sue for a breach of statutory duty only if the statute imposes a duty enforceable by a party aggrieved as well as a public duty. The answer to the question whether the statute imposes a duty so enforceable does not necessarily depend upon whether the statute was intended to protect a limited class of persons or the public as a whole. Nevertheless it is of importance to determine what was the intention of the statute in this respect, because, if the statute on its true construction is intended to protect a particular class, it is some indication that members of that class are intended to have a right of action, as for example in the case of statutes for the protection of factory workers, mine workers, building workers, merchants, seamen, dock labourers, shipyard workers and other employees, or intended for the protection of the public when exposed to certain dangers. On the other hand, if the statute is intended to protect the public as a whole, it will not usually be construed as giving a right of action to individual members of a particular class. In any case in which a class of individuals has a common law right of action in respect of the breach of a duty imposed by a statute, a plaintiff to succeed must show that he is within the class of persons which is intended to be protected and to which the duty is therefore owed."
ORISSA HIGH COURT

Krushna Kishore Bal vs Sankarsan Samal And Ors. on 28 November, 1973

Equivalent citations: AIR 1974 Ori 89

Bench: G Misra, B Patra, S Acharya

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prison rules are regulatory in nature,does not give prisoners cause of action

Tort; false imprisonment -- R v Deputy Governor of Parkhurst Prison and others ex p Hague; Weldon v Home Office

Wednesday 18 September 1991

The prisoner in the first appeal was segregated by an order of the deputy governor of the prison and was transferred to another prison for continued segregation.
The deputy governor had obtained authorisation from the Secretary of State of the Home Department of his decision.
The prisoner applied for judicial review of that decision.
The Queen's Bench Divisional Court dismissed that motion.
The Court of Appeal allowed his appeal in part.
The prisoner in the second appeal brought an action in the county court against the Home Office for damages for false imprisonment by certain prison officers.
He alleged that those officers wrongly removed him from his cell, assaulted and kept him in a strip cell overnight.
The Home Office's motion to strike out certain paragraphs in the statement of claim was dismissed by the registrar.
The assistant recorder and the Court of Appeal dismissed the Home Office's appeal.
The prisoner in the first appeal and the Home Office appealed.
Stephen Sedley QC and Timothy Owen (instructed by BM Birnberg & Co) for the prisoner in the first appeal; John Laws, David Pannick and Robert Jay (instructed by Treasury solicitor) for the respondents in the first appeal and the Home Office in the second; David Harris QC and Timonth Owen (instructed by RM Broudie & Co) for the prisoner in the second appeal.
Lord Jauncey of Tullichettle said that it had always to be considered whether the enactment in question intended to confer private law rights of action on individuals in respect of breaches of the enactment.
The Prison Act 1952 was designed to deal with the administration of prisons and the management and control of prisoners.
The provisions of the Act contained nothing which showed that Parliament intended to confer on prisoners a cause of action sounding in damages for breaches of its provisions.
Furthermore, the Prison Rules 1964 were wide-ranging in their scope.
They covered matters of administration and good government of a prison.
Many of the rules did not relate to prisoners.
Those which did were never intended to confer private law rights in case of breaches.
There were no circumstances in which a convicted prisoner could sue the prison authorities for damages for false imprisonment.
Here, it was submitted in each case that it was the treatment in the prison and the alteration in the conditions which constituted false imprisonment.
But while a prisoner, lawfully committed to a prison, was in that prison his whole life was regualted by the prison regime.
He had no residual liberty which could be breached so as to constitute false imprisonment.
It could not be said that detention became unlawful when its conditions became intolerable because that confused conditions of confinement with the nature of confinement and added a qualification to s 12(1) which was not permissible.

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Water rights, principles of torts

Under the Municipal Law no private person can claim a right to foul an ordinary drain by discharging into it what it-was not intended to carry off. Where the defendant, the owner of a shellac factory, discharged into the Municipal drain, which was not constructed or intended for carrying off such stuff, refuse liquid of an offensive character, which interfered with the ordinary comfort of the plaintiff's occupation of property and caused him special injury, it was also held that the plaintiff was entitled to restrain him. Where, moreover' the defendant discharged the liquid into the drain knowing from the condition of the drain and the nature of the liquid that it could not be efficiently carried away, but must stagnate, decompose and create a nuisance, it was held, that the defendant must be responsible for the necessary consequences of his action and was not entitled to shift the responsibility on to the Municipality by contending that, if the latter would improve the drain, there would be no nuisance. It was also held that an injunction for the permanent stoppage of the nuisance was the only effectual remedy in the case. It was further held that substantial damages should be awarded against a defendant, who has persisted in a nuisance causing material injury to the plaintiff.

Madras High Court

Shanmughavel Chettiar And Ors. vs Sri Ramkumar Ginning Firm on 18 December, 1985

Equivalent citations: AIR 1987 Mad 28

Bench: Swamikkannu

JUDGMENT
1. The defendants in 0. S. No. 2 of 1976 on the file of the Court of the learned District Munsif, Srivilliputtur, are the appellants in this second appeal. They have preferred this second appeal against the Judgment and decree dt. 18th Sept. 1985 in A. S. No. 115 of 1978 on the file of the Court of the learned Subordinate Judge, Ramanathapuram at Madurai. The suit was filed for injunction to restrain the defendants appellants herein and their men not to start a brick kiln and chamber in the V schedule property. The plaintiff succeeded before the trial Court. Aggrieved by the Judgment and decree of the trial Court, the defendants preferred A. S. No. 115 of 1978 before the lower appellate Court. The lower appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal with costs. Aggrieved by the Judgment and decree of the lower appellate Court, the defendants have come forward with this second appeal before this Court.
2. The case of the plaintiff M/s. Ramkumar Ginning Firm through its sole proprietor V. L. Balasubramaniam is as follows : - In the plaint A schedule property, the plaintiff has constructed building to locate a Ginning Factory and obtained necessary licence therefore from the Panchayat Union. The defendants had purchased the B schedule property three years after the purchase of the A schedule property by the plaintiff and they are contemplating to start a brickkiln in the said property. According to the plaintiff, the proposed brick kiln in the plaint B schedule property will result in hardship since he has to store cotton and use the vacant site for the purpose of drying the cotton before ginning and the proposed brick kiln will bring about the hazard of fire in his ginning factory. It is the further case of the plaintiff that inasmuch as he has invested large capital after obtaining necessary loans from the bank for putting up construction of buildings and for locating the machineries and the proposed brickkiln business by the defendants does not involve such investments and effort, the balance of convenience is in his favour and that in the said circumstances, he is entitled to the relief of injunction.

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Basic principles of Nuisance

The law repeatedly recognises that a man may use his own so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The term 'nuisance' is incapable of an exact definition as observed in Winfield on Tort (VI Edition) at p. 536. But its concept is well understood. As the Author has observed it may be described as "unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it."

Rajasthan High Court

Bhanwar Lal And Anr. vs Dhanraj on 10 November, 1972

Equivalent citations: AIR 1973 Raj 212, 1972 WLN 999

Bench: K Singh

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What will be duty of employer towards employee when situation is abnormal?

Normally, an employer owes no duty of care for the safety of his employee while the employee is proceeding to the place of employment from his house. The point, however, is whether the same rule prevails when the situation is abnormal and when as a result of outbreak of violence in the city, the law enforcement authorities promulgate curfew order requiring citizens to be within doors as the only means which can reasonably ensure their safety. In such a situation, when every citizen is expected to be within doors as a matter of safety, if an employer requires his employee, to come to the place of employment in early hours of the morning, it is reasonably foreseeable that the employee is likely to suffer injury at the hands of some ruffian while on the way to join his work unless adequate arrangements are made by the employer for the safety of the employee. Requiring an employee to come to work in such a situation is itself such an act from which harm to the employee is forseeable and the employee being closely and directly connected with the act of requiring him to join his work, the employer must have his safety in contemplation. On the principles enunciated by Lord Atkin in Donoghue v. Stevenson (quoted earlier) the employer must, in the circumstances prevailing in the instant case, be held to owe a duty of care to the employee while he was on his way to the place of work. The employer should have taken adequate care for the safety of the employee while he was on his way either by providing safe transport or some persons to accompany and guard him. In case it was not possible for the employer to make any arrangement for the safety of the employee, the employer should have temporarily closed down the business, as the only alternative of avoiding harm to the employee. It has also to be kept in view that the employee, in the instant case, unlike a police constable or a fireman, was not in such an employment where it was expected of him from the nature of employment to face the hazard of a riot.

Madhya Pradesh High Court

Madhya Pradesh State Road ... vs Mst. Basantibai And Ors. on 30 April, 1971

Equivalent citations: (1971) IILLJ 273 MP

Bench: S Bhargava, G Singh

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