Digest of case laws

Limitation Act, Article 54. (Suit for specific performance)


Raghuvir Singh Bhatty Vs. Ram Chandra Waman Subhedar reported in AIR 2002 Allhabad, 13, 

(A) Limitation Act (36 of 1963), Art. 54 – Suit for specific performance of contract – Limitation – Permission of ceiling authority, pre-requisite for execution of sale deed – sale deed to be executed only after intimation to purchaser of grant of permission – Notice by vendor to purchaser that contract had frustrated on account of refusal to grant permission by Ceiling Authority – Limitation would start running from service of notice.

(B) Specific Relief Act (47 of 1963), Ss. 20, 16 – Discretion of Court – Permission of Ceiling Authority, pre-requisite for execution of sale deed – Refusal of permission by authorities – Contract frustrated on account of failure to obtain permission – Subsequent repeal of Ceiling Act – Legal hurdle of impossibility in enforcing contract thus removed – Decree for specific performance can be passed.


(C) Specific Relief Act (47 of 1963), S 16 – Time whether essence of contract – Sale of immovable property other than commercial transaction – Agreement to purchase land for building house for purchaser himself – Mere fixation of period within which contract is to be performed – Not a decisive test – No recital in agreement that parties intended time to be of essence – It cannot be held that time was essence of contract.
Contract Act S. 55.

(D) Specific Relief Act (47 of 1963), S. 16(c)  – Readiness and willingness – Proof – Time not essence of contract – Mere delay in absence of abandonment or waiver – Not a ground for inferring want of readiness or willingness so as to refuse specific performance.

(E) Specific Relief Act (47 of 1963), S. 20 – Discretion of Court – Time not of essence of contract – Clauses in agreement however, indicating that contract had to be performed within reasonable time – plaintiff contributing to the delay in execution of contract – Prices of property escalating sharply in the meanwhile – defendant cannot be called upon to execute the sale-deed.

(F) Specific Relief Act (47 of 1963), S. 21 – Compensation – Determination – Sale deed  to be executed within six months from date of execution of agreement and during that period defendant-vendor was to obtain permission from ceiling authorities – defendant however, not applying for such permission for three years – Contract frustrated due to non-receipt of permission – Prices of property shareply escalating in meanwhile – No evidence on record however, regarding market value of property – Plaintiff allowed refund of earnest money together with damages amounting to Rs.20,000/- and interest upon earnest money from date of contract at the rate of 12% p.a. to date of payment 
Transfer of Property Act, S. 54.

Harnam Singh Vs. Mangat Singh and anr. reported in AIR 2001 Punjab and Haryana, 257

Limitation Act, Art. 54- Suit for specific performance – Limitation – Vendor entering into agreement of sale of land belonging to Central Govt. as he was in its cultivating possession and policy of Central Govt. was to allot such land to occupiers – Mutation of land sanctioned in his favour – Notice by purchaser thereafter to vendor calling upon him to execute sale deed – Suit filed within three years from date of receipt of notice – Would be within limitation – As specific performance shall be deemed to have refused when notice was received by vendor – Relief of specific performance also cannot be refused on ground that suit was filed after about 9 years from date of agreement as cause of action arose after mutation was sanctioned in favour of vendor.
Specific Relief Act (47 of 1963), S.13. 

Sau. Shantabai Vs. Manakchand AIR 1988 BOMBAY, 82.

(A) Specific Relief Act (1963), S. 20 –  Agreement to sell agricultural land to plaintiff a non-agriculturist – Permission to be obtained by Vendor to sell and to get land converted to non-agricultural user – Vendor not taking steps as agreed – Held, that breach was on part of Vendor-defendant.

(B) Specific Relief Act (1963), S. 20 – Evidence Act, S. 57 – Suit for specific performance of agreement to sell land – Grant of damages – Quantum – Court can take judicial notice of rise in prices of land. Civil Procedure Code S. 34.

H.M. Krishna Reddy Vs. H.C.Narayana Reddy reported in 2001 Karnataka, 442.

(A) Limitation Act, Art. 54 – Suit for specific performance of contract – Limitation – Starting point – Agreement of sale – Mentioning that vender would execute sale deed “after repealing ban on registration by Govt.” - Therefore, agreement did not fix date for performance of contract – Not also mention an event “certain to happen” on happening of which specific performance become due – Thus, time for filing suit for specific performance begins to run only when vendee had knowledge of vendor's refusal to perform.


Specific Relief Act, Section 20(c)
Preetam Kaur Vs. Prakash Ramdeo Jaiswal [R.M. Savant, J.]
2011(6) Mh.L.J., 84.

A) Specific Relief Act, Section 20(c) – Specific performance of agreement – Merely because there is rise in prices would not disentitle the plaintiff to the right to specific performance of agreement – Court in such cases would endeavour to balance the equities between the parties, where there is an appreciation in the value of the land. 2010(6) Mh.L.J.295 Relied.




AIR 1993 Madhya Pradesh 162
R. C. Lahoti, J.

Premnarayan and anr. Vs. Kunwarji and anr.,

(A)  Contract Act, S. 16 –  Civil Procedure Code, Order 6 Rule 4 – Contract of sale – Plea of undue influence – Absence of proof that vendee is in position to dominate will of vendor – Onus not discharged – Plea liable to be rejected.  
AIR 1967 SC 878, Rel.On.

(B) Transfer of Propery Act, Section 54 – Contract of sale – Passing of title – Sale deed duly executed and registered – Payment of consideration not made condition for passing of title – Title passes to vendee despite non-payment of price – Suit for possession by vendee maintainable – Vendor has remedy of asking for payment of price.

  Where the document on its face is a deed of sale, duly executed and registered and it is not the plea of the vendor that title in the suit property was not intended to be passed on to the vendee and was postponed to be passed until the consideration was paid, even if the possession was not delivered and the price was not paid, on the contents of the document the title passed to the vendee.  If the vendee was deprived of possession he was well justified in asking for the same.  The remedy of the vendor lay in asking for payment of price.
EVIDENCE ACT SECTION 68 AND SPECIFIC RELIEF ACT SEC. 10.

Asudamal Laxmandas Sindhi Vs. Kisanrao Wamanrao Dharmale
2003(4) Mh.L.H., 134      (V. M. Kanade, J.)

(A) Evidence Act, S. 68 – Execution of document – proof by examination of attesting witnesses when necessary.
Only where there is a specific provision made in the Act requiring that the document is to be attested then in such cases the examination of the attesting witnesses is necessary as laid down in section 68 of the Evidence Act.  The finding of the appellate Court that though one of the attesting witness is alive, the original plaintiff was duty bound to examine him to prove the execution of isarchitthi i.e. agreement of sale, was not correct.

(B) Specific Relief Act, S. 10 and Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, S. 89 – Suit for specific performance of agreement of sale of agricultural land owned by defendant – Lack of permission under section 89 not an impediment in passing a decree for specific performance.


SPECIFIC RELIEF ACT SECTION 10 AND REGISTRATION ACT, SEC.49.
Nirav Deepak Mode Vs. Najoo Behram Bhiwandiwala and ors.
2012(3) Mh.L.J. 370              [Mrs. Roshan Dalavi. J]

(a) Specific Relief Act, S. 10 and Registration Act, S. 49 Proviso -  Suits for specific performance can be filed upon unregistered document or even upon an oral agreement – Lack of notorisation or registration cannot disentitle the plaintiff to the relief at least prima facie for protection of the premises agreed to be purchased by the plaintiff. 

(b) Specific Relief Act, S. 12 and Civil Procedure Code, O. 39 R.1 – Suit for specific performance – Relief of injunction for protecting the suit property is required to be granted, but only upon the plaintiff performing his part of the contract, which the plaintiff is required to be ready and willing to perform at all material times including at the time of filing the suit – This would be only upon payment of the entire consideration by the plaintiff which is the only obligation that the plaintiff is required to perform.
TRANSFER OF PROPERTY ACT, SECTION 53-A
Yuvrani Hansa Devi Vs. Jafar Farooq Vohara and anr. reported in 2012(1) Mh.L.J, 302 (Mrs. Roshan Dalvi. J)
Transer of Property Act, S. 53-A – Donctine of “part performance” - Transferee put in possession in part performance of the contract must show that he has paid up the full purchase price or that he was ready and willing and able at all times to make payment of the entire price.
“Section 53-A of the Transfer of Property Act contemplates effectuating the English doctrine of what is called 'part performance' under which when the possession is obtained by a transferee in part performance of the contract or when the transferee has already been put in possession prior to his performance of the other part of the contract, the possession is safeguarded under the doctrine.  It envisages several conditions precedent.  The transferee has to show that he had taken or continued in possession of the property, that he was willing to perform his part of the contract and has undertaken some action in part performance of the contract.  Since a transferee in possession would require essentially only to pay the balance consideration, he has to show that he has paid up the full purchase price or that he was ready and willing and able at all times to make payment of the entire purchase price”.
CPC O.26 R.9 – 

Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and ors. reported in 2001(2) Mh.L.J., 959, 
Court Commissioner cannot be appointed for collecting evidence. 
Ambarish Patnigere Vs. State of Maharashtra reported in 2010 All M.R.(Criminal) 2775, wherein it is observed that the Magistrate has jurisdiction to grant the bail if the offence is punishable less than the death or life imprisonment
Phrase -  “Touching the business of the society”
Deccan Merchants Vs. Balichand [1970 Mah.L.J.
'Touching the business of the society' means such activity of the society, which includes trade, commerce and that the basic principle is whether the particular business touches the very business of the society for which it is formed.

M/s. Satguru Construction Co. Pvt. Ltd. Vs. Greater Bombay Co-op. Bank Ltd.,  [2007(5) AIR Bom R 37 (DB)
(A) Maharashtra Co-op. Societies Act, S. 156 – Maharashtra Co-op. Societies Rules, R. 107 – Recovery certificate – Execution – Has to be only in accordance with procedure contained in S.156 and R. 107 – And Civil or Revenue Court will have no jurisdiction – As such, order of arrest of appellants for non-payment of amount due passed by Civil Court, is liable to set aside.
(B) Maharashtra Co-op. Societies Act, S. 163 – Recovery certificate – Execution – Jurisdiction of Civil Courts – S. 163 clearly excludes civil courts from exercising any jurisdiction to settle any disputes referred to Co-operative Courts – And not pleading issue of jurisdiction at initial stage will not clothe Civil Court with jurisdiction expressly barred.

Jijamata Sah. Sakhar Karkhana Ltd., Dusarbid Vs. Sukhadeo Rambhau Fulzade [ 2010(5) Mh.L.J., 431]
(A) Civil Procedure Code, S. 9 and Maharashtra Co-operative SocietiesAct, S. 164 – Scope – Suit for recovery of sum from co-operative society – Transaction touching business of society – Civil Court had no jurisdiction to entertain the suit since it was instituted without compliance of requirements contained in section 164 of the Act.
(B) Maharashtra Co-op. Societies Act, S. 164 – Notice – Suit instituted against society without pre-suit statutory notice and no waiver was established before the Civil Court – Suit therefore correctly dismissed.

Gurudev Developers Vs. Kurla Konkan Niwas Co-op. Hsg.Society
[2000(3) Mh.L.J., 131]
(A) Maharashtra Co-op. Societies Act, S. 164 – Suit against co-operative housing society – Agreement entered into between plaintiffs Developers and defendant-soceity touching business of society – No notice u/s 164 given by plaintiffs – Suit held not maintainable.
(B) Specific Relief Act, S. 14 – Development agreement by plaintiffs with defendant co-operative housing society – Termination of agreement by society – Suit for specific performance not maintainable as the agreement could not be specifically enforced.
(C) Partnership Act, S. 69(2) – Suit by plaintiffs-Developers partnership firm – Allegation of defendants on affidavit that partnership of plaintiffs was not registered on date of filing of suit not controverted – Suit not maintainable.

Suprabhat Co-op. Hsg. Society Ltd., Vs. Span Builders
2002(3) Mh.L.J., 837
Maharashtra Co-operative Societies Act, S. 164 – Suit instituted by respondents touching business of 1st applicant housing society – No notice as contemplated under section 164 was served prior to institution of suit – Plaint liable to be rejected for want of notice under section 164.
S. 138 and 145 of Negotiable Instrument Act (N.I.Act)

Peacock Industries Ltd., Udaipur and ors., Vs. Budhrani Finance Ltd., Bombay and anr.  2006(5) Mh.L.J., 162  
(D. B. Bhosale, J.)
GUIDELINES/DIRECTIONS ISSUED BY HIGH COURT IN  THE MATTER OF DISHONOUR OF CHEQUE AND FOR ACCOMPLISHMENT OF OBJECT OF THE ACT. 





The learned advocate for complainant also relied upon the judgment in Nitin Bapurao Mankar Vs. Shri. Vyankatesh Housing Agency Nagpur reported in 2011(1) DCR 63, wherein it is observed that when presumption statutorily available to complainant were not rebutted by the accused by adducing satisfactory evidence to the contrary then acquitting the accused is not justified and cannot be sustained.

The learned Advocate for complainant also filed the judgment in  Devidas S. Mardolkar Vs. Harichandra Mandrekar reported in 2009 (1) DCR 592, wherein it is observed by the Hon'ble Bombay High Court that in view of the presumption provided under section 138 and 139 of the N.I. Act, Court cannot insist that cheque must be accompanied by some documents to indicate existence of liability.  Court cannot read a requirement which is not prescribed by the law and negate the presumption under section 139 of the N.I. Act.  In the light of above observations, it is clear that the burden lies upon the accused to rebut the said presumption by adducing the cogent evidence.  In the case on hand, the complainant has filed sufficient documents to establish his basic case.  Hence the ratio laid down in the above judgment is applicable in the present matter.  



The learned advocate for complainant filed the judgment in Mahesh Vs. Dattaram reported in 2009(2) D.C.R. 185, wherein it is observed that the defence taken in course of cross-examination of complainant or his evidence by accused cannot be accepted.


The learned advocate for complainant vehemently argued that the accused has failed to reply the notice issued by the complainant-factory.  In such circumstances, the presumption lies in favour of the complainant-factory under section 139 of the said Act.  To support this argument, he has relied upon the judgment in Yogendra Bhagatram Sachdev Vs. State of Maharashtra reported in III (2003) CCR, 216.  I have gone through the said judgment.  It is observed that where the accused has failed to reply the notice the presumption that accused had no defence whatsoever, arises. 

On the contrary, the learned advocate for accused relied upon the judgment in R. B. Ramakrishnan Vs. A. Meena reported in 2011(2) DCR 696, (Madras High Court).
(A) Mere failure to reply notice will not take away the right of the party to contest the case. 
(B) When an accused has to rebut the presumption under section 139 of the said Act, the standard of proof for doing so is that of “preponderance of probability” and, therefore, if accused is able to raise a probable defence, which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.

So also, he has filed the judgment in K.N. Beena Vs. Muniyappan reported in 2001 Cri.L.J., 4745, wherein it is observed that the burden lies upon the accused to show that cheque had not been issued for any debt or liability.  

Bhai Manjit Singh Vs. Sangam India Ltd and anr. reported 2002 STPL (DC), 482, Delhi, 
S.138 – Dishonour of cheque – complainant produced authorization which empowered him to file civil suit - Complainant cannot file criminal complaint.

2. Dr. Pradeep Mohanbay Vs. Minguel Carlos Dias reported in 2002 STPL (DC) 221, Bombay, 
S.138 and 142- Dishonour of cheque- deposition by power of attorney on behalf of complainant – complainant can appoint power of attorney for filing complaint – However, he cannot depose for or on behalf of complaint.
The Hon'ble Bombay High Court as under.
“It is well settled that any person can set the criminal law in motion and, as such, a complaint regarding an offence, can be filed by any person, who knows about the commission of the offence. Nevertheless, section 142 of the said Act, lays down that no cognizance of the offence under section 138 of the said Act, shall be taken, except on a complaint of payee or holder in due course. Section 142 of the said Act, does not contemplate that the complaint should be personally filed by the complainant.  The complainant can appoint a power-of-attorney for filing the complaint in view of section 142 of the said Act.  However, neither Code of Criminal Procedure nor the said Act contemplates that any one can depose for and on behalf of the complainant.  In such complaint, the power of attorney is entitled to appear as a witness and depose in respect of facts, which are within his knowledge and on the basis of record on which reliance is placed.”  

Zaheeda Kazi Vs. Mrs. Sharina Ashraff Khan reported in 2008(1) DCR, 287  [ Bombay High Court – N.A.Britto – J.]
N.I.Act. S. 138 – Dishonour of cheque – cheque issued against time barred debt – Dishonour – Legalilty of – Held - accused cannot be convicted under section 138 of the said Act.
 Mere giving a cheque, without anything more, will not revive a barred debt, because cheque has to be given, as contemplated by the explanation to s. 138 of the Act, in discharge of a legally enforceable debt.

Kamalakasha Laxman Prabhu Vs. S. G. Mayekar reported in 2009(1) DCR 426, [Bombay High Court – Tahilramani V.K. J.] 
N.I.Act. S. 138 – Dishonour of cheque – Liability against time barred cheque – Held – Where cheque is issued against time barred debt it cannot be said that cheques were issued for discharging legally enforceable liability – Acquittal is justified.


Vasudeo Ramchand Ahuja Vs. Vilas Shripati Kamble & anr.
2006 ALL MR (Cri.) 3203.    [Bombay High Court -D.B.Bhosale.J]
N.I.Act. S. 138 – Existing liability – Complainant alleging that accused had taken a friendly loan of Rs.5,00,000/- from him – Cheque issued in repayment was dishonoured – Complainant unable to produce documents to show that there was enforceable debt against accused – Said amount admittedly was not shown in Income Tax return and also did not reflect in the books of account – Held Trial Court was justified in upholding defence of accused that there was no legally enforceable debt on date of presentation of cheque and in dismissing the complaint.

Vividha Urban Co-op. Credit Society Ltd. Vs. Gurudas Krishna Fatrekar and anr. reported in 2010 ALL M.R.(Cri.), 1792
[Bombay High Court, Panaji Bench]
(A) N.I.Act, S.138 – dishonour of cheque – Acquittal of accused – Challenge to – Cheque in question issued for more amount than due to complainant – Acquittal of accused on that count, a reasonable and plausible view of Magistrate – Order of acquittal, therefore, could not be faulted.

Narinder Kumar Vs. Harnam Singh reported in 2000(2) Civil LJ 224, 
(A) N.I.Act, S.138 – Complaint on dishonour of cheque - Variance in pleadings and proof as to nature of debt - Cheque in question not proved to be issued in lieu of sum borrowed – Cheque being filled in by complainant as per his own volition without lawful consideration possible – No subsisting debt or liability established- Cheque not proved to be issued in discharge of such liability - Accused is entitled to acquittal.
(B) N.I.Act, S.138 and 142 – Complaint on dishonour of cheque – Complaint for offence u/s. 138 – Notice sent on 15th day of the receipt of information of dishonour of cheque – Notice received on 22.1.1990 – 15 days of notice expiring on 6.2.1990 – Limitation starting from 7.2.1990 – Complaint filed on 21.2.1990 – Complaint well within period of one month.

Balaji Agencies Pvt. Ltd., Vs. Mr. Vilas Bagi and another reported in 2010(1) DCR 443, wherein it is held that securities are given so that they can be forced when need arises.  They are not given as pieces of papers. Therefore, the cheque given as a security is given for the liability.  Hence the offence under section 138 of the Act is attracted.

M.Ibrahim Vs. Gurudas reported 2010(5) Mh.L.J. 137, wherein it is specifically held that weakness of the defence cannot be considered by the prosecution and prosecution must stand on its own legs.  It is to be noted that there is no need for the accused to adduce the evidence to rebut the case of the complainant in every case.  It is sufficient for the accused to create the doubt in respect of the transaction, then automatically onus shifts upon the complainant.  


Krishna Vs. Dattatraya reported in 2008(4) Mh.L.J., 354, wherein it is observed that section 139 of the Act has been inserted to regulate the growing business, trade and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of the developing country like India.  This, however, shall not mean that the Court shall put a blind eye to the ground realities.  Statutes mandates raising of presumption but it stops at that.  It does not say how presumption should be held to have rebutted.  Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by section 139 should be delicately balanced.  Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to the legal principles governing the same.  Hence the burden lies upon the complainant to prove the guilt of accused beyond all reasonable proof, the standard of proof so as to prove a defence on the part of the accused is “preponderance of probabilities” and inference of the same can be drawn not only the materials brought on record by the parties, but also by reference to the circumstances.  It is not necessary that accused should step into the witness box and rebut the presumption. 

C.C.Alavi Haji Vs. Palapetti Mohamad and anr. reported in 2008(1) Civil Law Journal, 38, wherein it is observed that where the envelop shows that notice is sent by registered post acknowledgment on the correct address and where it is shown that the same is returned with endorsement that the addressee was abroad, it is fulfillment of requirements under section 138 of the Act.

M/s. Indo Automobiles Vs. Jaydurga Enterprises and ors., reported in 2008(2) D.C.R., 499, wherein it is observed that where the notice sent to correct address of the drawer but returned with endorsement, it must be presumed to be served to the drawer.  

Mr.Rajesh M. Pamanai Vs. State of Maharashtra and ors., reported in 2011(2) DCR, 251, wherein it is observed that for complaint under section 138 of the said Act, the prima-facie responsibility is on the complainant to make specific averments as are required under the law in complaint so as to make the accused vicariously liable.

N.I.Act. Sections 138 and 141 – Jurisdiction.
Jambu Kumar Jain and anr. Vs Tata Capital Ltd and ors.,
2011(6) Mh.L.J., 149.    [J.H. Bhatia, J.]
Territorial jurisdiction of the Court – Agreement for loan had taken place at Indore -  Deed of agreement executed at Indore – Complainant had network of branches all over the country, including Indore – Cheques were issued by the accused at Indore against the accused maintained at Indore – Cheques were required to be presented at Indore – Cheque Processing Centre at Mumbai could not be equated with drawee Bank to which the cheque was required to be presented – Merely because notice was issued by the complainant from Mumbai, where its head office was situated, the Magistrate at Mumbai did not get the jurisdiction – Order directing issuance of process set aside and the complaints directed to be returned for presentation to the proper Court. 2009(3) Mh.L.J.(SC)792.


Time barred debt - 
Purushottam Maniklal Gandhi Vs. Manohar K. Deshmukh and anr.,
2007(1) Mh.L.J., 210.     [R. C. Chavan]
Section 25(3) of Contract Act – Cheque is a promise made in writing to pay certain sum – There is a legally enforceable liability.
Since a cheque is a promise made in writing to pay certain sum, it would be covered by clause 3 of the section 25 and therefore, it would not be open for the accused to say that there is no legally enforceable liability.  Consequently, the acquittal of the respondent for offence under section 138 since it was not proved that the cheque in question have been issued towards debt or legally enforceable liability cannot be upheld.
N.I.Act., Section 20 - It is open to a person to sign and deliver a blank or incomplete cheque and is equally open for the holder to fill up blanks and specify the amount therein.
Considered the observation in Narendra V. Kanekar Vs. The Bardez-Taluka Co-op. Housing Mortgage Society Ltd and anr., 2006(4) AIR Bombay R 56.   Clause 3 of section 25 of Contract Act revives the remedy to enforce payment of a time barred debt on a fresh promise to pay.

Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt and anr.,
2013(2) Mh.L.J., 130.   [A.S. Oka and Smt.Sadhana S. Jadhav, JJ.]
Contract Act, S. 25(3) and N.I.Act, S.138 – Promise to pay time barred debt is a valid contract – Cheque issued for discharge of a debt which is barred by law of limitation is itself a promise within the meaning of section 25(3) of the Contract Act – Promise in the form of a cheque drawn in discharge of a time barred debt or liability becomes enforceable by section 25(3) of the contract – Such cheque becomes a cheque drawn in discharge of a legally enforceable debt as contemplated by explanation to section 138 of N.I.Act.

There should be existing debt or liability when the cheque was issued.
Ramkrishna Urban Co-op. Credit Society Ltd., Ahmednagar Vs. Rajendra Bhagchand Warma 
2010(4)Mh.L.J. 27  [P. R. Borkar, J]
N.I.Act, S. 138 – Respondent acquitted of offence u/s 138 of the Act – Leave to appeal against acquittal – Blank cheques were issued prior to disbursement of loan as a collateral security for loan – There was no existing debt or liability when the cheque was issued – Complainant failed to prove that amount mentioned in the cheque was due and payable by the respondent – Provisions of section 138 not attracted – Leave to appeal not granted. 
(Law makers must not have intended or imagined that money lenders or banks would obtain blank or post dated cheques while sanctioning/disbursing loans as securities and would use them to make debtors/borrowers to repay loan under threat of prosecution and punishment u/s 138.  So, it is doubtful if provisions of section 138 of the Act would be attracted to a case in which a blank or post dated cheque is obtained by a bank or money lender before or while sanctioning or disbursing loan amount as security for the loan.  2003 BCR (Cri.) 474 Relied.)


Kartik Rajesh Sharma Vs. HDFC Bank Ltd., 
2010 ALL MR (Cri.), 192 [ D. G. Karnik, J.]
N.I.Act sec. 138 – Where the bank had sent a notice to the surety – the contention of the surety is that the bank had not followed the proper procedure – as per the contract of guarantee the liability of the sureties arise in the event of failure of the borrowers – and afterwards the bank is supposed to send a written demand first to the borrower and then to the surety – however, in the present case, the bank had made the written demand prior to the presentation of cheque – Held, there is no liability existing against the surety prior to the presentation of cheque – in this view the proceeding is liable to be quashed.
JOINT FAMILY PROPERTY
Gangadhar Pandhari Harde Vs. Uttam Pandhari Harade
2008(2) Mh.L.J., 334     [Bombay High Court – C.L.Pangarkar.J.]
Joint family property – Oral relinquishment of share in a joint family property – Validity – A co-parcener or a sharer in joint family property can surrender his share orally at the time of partition – Oral surrender of self-acquired property is invalid.


AIR 2012 Kerale, 189
Civil Rules of Practice Para 236
How to effect partition …...
Civil Procedure Code, 109 – Order 6 Rule 17

Sushil Kumar Jain Vs. Manoj Kumar 
2009 SAR (Civil) 700  Supreme Court.
Civil Procedure Code, 1908- O. 6 R. 17. - Amendment of written statement.  - An admission made by a party in original W.S. May be withdrawn or may be explained away – Ejectment proceeding in respect of main gate – Appeallant has been described as a tenant in respect of the dimised premises – In W.S. the averments were made that the appellant is occupying other areas as well as under different tenancies – During pendancy of proceedings an application under O 6 R 17 was filed – That there are different portions under one tenancy – Appellant sought deletion of the words “under different tenancies” - Rejected by Rent Controller holding that an admissions made in W.S. is not permitted to withdraw – High Court affirmed the order – Legality of – Appellant seeks to only clarify the earlier confusion made in WS – Admission can be explained by taking inconsistent pleas or substituting or altering defence – Held – amendment of W.S. is allowed.


Ajit Narsinha Talekar Vs. Nirmala Wamanrao Kekade and ors.,
2010(5) Mh.L.J. 481 (Bombay High Court – D. G. Karnik. J.)
(a) Civil Procedure Code O.6 R.17 – Amendment of plaint – plaintiff sought to give details about his requirement of the suit premises – Nature of the suit cannot change by elaboration of the ground – Order rejecting the application for amendment set aside.
(b) Civil Procedure Code, S.9 – Trial of the suit – Commencement of.
Even after issues are framed, suits offen are adjourned several times because of applications for adjournment made by either of the parties.  Some times the matter is not even called out because the Court remains busy in dealing with older matters which are on board.  Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself or his first witness in lieu of examination in chief. This is the commencement of the trial.
(c) Precedent – Judgments of Courts are not to be read as a statute- A sentence in the judgment cannot be read in isolation – It must be read in the context in which it appears and cannot be read as a provision of a statute.


Baldev Singh and ors. Vs. Manohar Singh and anr. reported (2006) 6 Supreme Court Cases, 498, wherein it is specifically observed as under.
“17. Before we part with this order, we may also notice that proviso to order 6 rule 17 of Civil Procedure Code provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced.  For this reason, we have examined the records and find that, in fact, the trial has not yet commenced.  It appears from the records that the parties have yet to file their documentary evidence in the suit.  From the record, it also appears that the suit was not on verge of conclusion as found by High Court and the trial court.  That apart, commencement of trial as used in proviso to Order 6 Rule 17 of Civil Procedure Code, must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.  As noted hereinbefore, parties are yet to file their documents.  We do not find any reason to reject the application for amendment of the written statement, in view of proviso to Order 6 Rule 17 of Civil Procedure Code, which confers wide power and unfettered discretion to the court to allow amendment of the written statement at any stage of the proceeding.”  


Civil Procedure Code O 6 R 17 : Scope
Kishor Raghunath Pande and anr. Vs. Narendra Durlabhji Shah
2012(3) Mh.L.J. 279    (S.S.Shinde.J)
(a) Civil Procedure Code, O. 6 R. 17 – Amendment of pleadings – provisions of Order 6, Rule 17 of Civil Procedure Code are in mandatory form – Court's jurisdiction to allow such application under Order 6 Rule 17 is taken away unless the conditions precedent therefor are satisfied.

J.Samuel and ors. Vs. Gattu Mahesh and ors., reported in 2012(4) Mh.L.J., 40 It is specifically observed as under.
“13.    Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested.   Duly deligent efforts are requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief.  An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient.  The term “Due diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.  
14.     A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with.  The term “due diligence” determines the scope of party's constructive knowledge, claim and is very critical to the outcome of the suit.”   


Civil Procedure Code Sections 151 to 153 and O. 6 R. 17.
(Mrs. Mridula Bhatkar, J.)
Hansabai Shripati Bhosale Vs. Parubai Gopal Bhosale 
2009(5) Mh.L.J., 500.

(a) Civil Procedure Code Sections 151 to 153 and O. 6 R. 17 – Correction of Gat number of the suit land in the plaint and consequential error in the judgment and decree – In the absence of any other remedy, application made by the plaintiff under sections 151 and 152 of the Code was proper and rightly allowed by the trial Court.
(b) Civil Procedure Code, S. 153 – The phraseology “any proceeding in a suit” used in section 153 – Construction of the said phrase can be given a narrow or wide import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language in which it appears.

(c) Civil Procedure Code, S. 153 – The phrase “in any proceeding” - All proceedings in the Court of civil jurisdiction would fall within the scope of this phrase which lien in favour of Court having powe under sections 151, 152 and 153 to amend judgment and decree in order to do justice between the parties.
(d) Civil Procedure Code, S. 153 – Applicability or inapplicability of section 153 to correct the description of the suit property in the plaint – Parameters. 

Civil Procedure Code, Order 21, Rule 32.
Prakash Bala Dubele and anr. Vs. Janabai Subhash Dubele
2011(6) Mh.L.J., 379 [S.S.Shinde, J.]
Civil Procedure Code, Order 21, Rule 32 – Execution of decree for injunction – The execution proceeding filed in the year 2004 – There was sufficient and considerable time for the applicants herein to obey the decree passed by the competent Civil Court – However, it appears that the applicants remained in possession of the suit property illegally and thereby continued to disobey the Judgment and Order/Decree – Court has jurisdiction to pass the order of detention in the civil proson.
T.Prasad and others Vs. P.D.Punnoose reported in AIR 1995 Kerala, 157, wherein it is observed that where the suit is for restraining defendants from trespassing from plaint schedule property or destroying its boundaries – evidence disclosing fact that trespass continued and boundary wall was destroyed with scant regard to plaintiff's proprietary right, even after institution of suit – award of monetary compensation cannot be a just remedy and grant of mandatory injunction is valid. 

C.Kunhamnad Vs. C.H. Ahamad Haji reported in AIR  2001 Kerala, 101, wherein it is observed that where it is shown that the party laying pipeline through another's land and injury is caused to the owner of the neighbouring land, in such cases granting compensation is not a remedy but party laying pipeline should be directed to remove the same.

Prakash Vs. Mansookha reported in AIR 1996 Bombay, 36, wherein it is observed that where co-owner in possession of property for and on behalf of other co-owners, cannot claim injunction against other co-owners restraining them from interfering with his possession and enjoyment of suit land so as to exclude them from exercising their rights as co-owners.

 Vithoba Savlaram Vs. Shrihari Narayan reported in The Bombay Law Reporter Volumn XLVII, page no. 116,  wherein it is observed that the statutory presumption permitted by section 90 of the Indian Evidence Act, 1872, can be raised only with regard to the original document if produced to the Court.  It does not apply to a certified copy when the original document is not before the Court

Smt. Chandrakantaben  Vs. Vadilal reported in AIR 1989 SC, 1269, wherein it is held that the revenue entries can be considered to raise the presumption in respect of possession only and not about title.

R.K.Mohammed Vs. Hajee reported in AIR 2000 Supreme Court, 1658, wherein the Hon'ble Apex Court has observed as to who is bona-fide purchaser.  Where the purchaser knows on the date of sale-deed that plaintiff was in possession as a tenant, the purchaser held to be not a bona-fide purchaser.  

Ramnarayan Vs. Firm reported in AIR 1979 Madhya Pradesh, 61, wherein it is observed that Court's power to grant declaratory decree is not limited to the terms of section 34 of Specific Relief Act.  Declaratory decrees can well be made by the Courts under the general provisions of Civil Procedure Code. 


Eknath Vs. Union of India reported in 2009(6) All M.R. 859 and judgment in Narbada Vs. Birendrakumar reported in 2003 STPL (LE) 32661, Supreme Court, wherein it is observed that mere production and marking of document as exhibit by the Court cannot be held to be a due proof of its contents. 

 Tameeshwar Vs. Ramvishal reported in 2010 All M.R. (Cri.) 660, S.C., wherein it is observed that cognizance cannot be taken where the complaint is filed on the basis of subsequent notice
Smt. Narayani Devi Vs. Phool Chand and anr. Reported in AIR 1981 Allahabad, 99, wherein it is observed that where a person transfers or bequeaths a immovable property to another and an easement in other immovable property of the transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to such easement and where an easement in the subject of transfer is necessary for enjoying other immovable property of the transferor, the transferor shall be entitled to such easement


Sou. Sitabai Narayanrao Deshmukh Vs. State of Maharashtra reported in 2010(3) All M.R., 658, wherein it is held that where the plaintiff deliberately stayed away from witness box and avoiding testing of truth of her case, adverse inference against the plaintiff can be drawn. 

Sheriff Iqbal Hussain Ahmad Vs. Kota Venkata Subbamma reported in AIR 1994 Andhra Pradesh, 164, wherein it is observed that where it is concluded finding of the fact that plaintiffs were legal owners of the suit properties, Court must grant specific relief of possession.

Ramdas Vs. Sitabai and ors. reported in AIR 2009 Supreme Court 2735, wherein it is observed that a purchaser cannot have a better title than what vendor had.  An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to vendee unless property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of Court

1. Haren Krishnakumar Mehata Vs. Kamla Pribhdas Nebhanani reported in AIR 2001 Bombay, 187, wherein it is observed as follows.
     “The plaintiff can simply point out that the evidence of defendant, which is beyond the pleadings and beyond the issue, should be disregarded.  Therefore, even if it is accepted for the sake of arguments that there is no cross-examination of defendant about the novation to the agreement which she tried to put through her evidence, then it does not mean that plaintiff admitted and accepted her evidence.  That evidence of defendant, which is beyond the pleadings, has to be rejected even in the absence of any cross-examination.”

Bajrang @ Hanumant Tatyaba Kakade and anr. Vs. Babubai and ors. reported in 1997(3) Civil Law Journal, 745, wherein it is observed that where purchaser taking sale only on the basis of mutation entry standing for 20 years and where there is no other evidence available to show that purchaser made full inquiry in the titles of vendors, he cannot be called as bonafide purchaser and protection cannot be given as the mutation entry is only fiscal entry not amounting to document of title.

Ramdas Vs. Sitabai and ors. reported in AIR 2009 Supreme Court 2735, wherein it is observed that a purchaser cannot have a better title than what vendor had.  An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to vendee unless property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of Court.

Nivrutti Kushaba Binnar Vs. Sakhubai Keru Jorvar reported in 2009(3) Mh.L.J., 737, wherein it is observed that an exchange of property as contemplated under section 118 of Transfer of Property Act must be effected by a registered instrument.  A plain reading of section 118 of Transfer of Property Act, reveals that such transfer would be valid only when it is effected likewise that of a sale as contemplated under section 54 of the said Act.  An immovable property valued more than Rs.100/- cannot be transferred without execution of a registered instrument.


The Bombay Prevention of Fragmentation and Consolidation of Holdings Act 
Prabhakar Kushaba Hagwane and ors. Vs. Yashwant Bhau Hagwane reported in 1993 Mh.L.J., 1291, wherein it is observed as under.
   “Plaintiff obtained the possession of certain holdings allotted to him under scheme prepared under section 20 of the Act and his name was entered in the record of rights.  He was dispossessed by the defendant.  Suit for possession was dismissed by the trial court on the view that plaintiff had failed to prove that possession was delivered to him.  The Lower Appellate Court decreed the suit holding that the plaintiff had got the possession and thereafter had been dispossessed by the defendant.  Plaintiff was held to have become owner of the property.  In second appeal by the defendant, it was contended that the certificate under section 24 not having been proved to have been received by the plaintiff, title did not vest in him and the suit thus was not maintainable.
Held, that the finding that the plaintiff had entered into possession was one of facts.  Scheme under section 20 of the Act is complete as soon as possession is delivered.  Issuance of transfer certificate was a matter of procedure and only of an evidence of the transfer which had already taken place.  Vesting of title in the consolidation of holdings did not depend upon the grant of certificate of transfer.  Plaintiff had became owner of the property even before issuance of certificate under section 24 of the Act.”  

The Bombay Prevention of Fragmentation and Consolidation of Holdings Act 
Hemdas Premdas Ranbakuda and ors. Vs. Surajbai Dhansao Sahu and ors. reported in 2008(4) Bombay C.R., 669, wherein it is observed that the certificate issued under section 24 of the Act cannot cure the defect of oral gift which is not in compliance of the provisions of Transfer of Property Act.   It is further held that even if certificate under section 24 is admitted as correct, it cannot have effect to transfer of title in favour of a person because the consolidation officer could not allot or transfer land in favour of a person, who is not owner of it before scheme was undertaken.

Sadashivam Vs. K. Doraisamy reported in AIR 1996 Supreme Court, 1724, wherein it is observed that the sale-deed by the father in favour of near relative – intention to repay debt or for legal necessity not proved- no consideration passed – parties never intended to act upon it, in such circumstances, the sale-deed executed out of dissatisfaction for son, hence it is sham. 

in P.Saraswathi Ammal Vs. Lakshmi Ammal alias Lakshmi Kantam reported in AIR 1978 Madras, 361, wherein it is observed that it is essential that in a case where fraud, undue influence or coercion is put at the forefront, the complaining party should set-forth the facts in full and give such essential particulars instead of making general allegations.  The Court must scrutinize the pleadings to find out that the plea has been made out and that full particulars thereof have been given before examining whether undue influence was exercised or not.


Ananda Wakode Vs. Pandurang Varilal reported in 2011(3) ALL M.R.41, wherein it is observed that where the defendant got document executed from plaintiff on the basis of misrepresentation, cancellation of sale-deed is not required and the suit for declaration that sale-deed was sham is maintainable.

R. Kuppayee and anr. Vs. Raja Gounder reported in 2003 RD-SC, 620, wherein it is observed that the a Hindu father or managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes.

Kondabai Vs. Muktabai reported in 2009(1) All M.R. 374, wherein it is observed that the annexation of the map with the plaint, drawn by a public servant can be said to have complied with the requirement of Order 7 Rule 3 of Civil Procedure Code.  It is also observed that it is necessary to file the map alongwith the plaint for proper identification of the suit property.

Kashinath Vs. Haribhau reported in 2006(Supp.) Bombay C.R., 1018, wherein it is observed that in a suit for possession of portion of land, which is said to have been encroached upon, decree becomes meaningless in absence of map of site and what portion was encroached upon.

Suprabhat Co-op. Housing Society Ltd., Vs. Span Builders reported in  2002(3) Mh.L.J., 837, wherein it is observed that where it is shown that no notice as contemplated u/s 164 was served prior to institution of suit, plaint is liable to be rejected for want to notice.

Ishwara Bhat Vs. Annappa Naika reported in I (1999) C.L.T., 430, wherein it is observed that section 6 of the Specific Relief Act provides for recovery of possession on the strength of his prior possession or dispossession by unlawful and illegal means and to such suits, title to the property is not relevant.  Settled possession though not founded on legal title, is recognized and protected by law as against all persons who do not have better title than the plaintiff.  It is further held that the person who is in possession even without title is entitled to protect his possession as against all persons who do not have better title than himself.


M.L.Subbraya Setty and ors. Vs. M.L. Nagappa Shetty and ors. reported in AIR 2002 Supreme Court, 2066, wherein it is held that on severance of joint family status from particular date and where properties are not partition, in such case members of the joint family became tenants-in-common of the family property from the said date.  The severance does not change the character of any joint family property.  It retains the character of joint family property till partition.

Shivgonda Balgonda Patil and ors. Vs. The Director of Resettlement and ors., reported in AIR 1992 Bombay, 72, wherein it is held that where the mutation entry showing the names of heirs of deceased khatedar and setting out shares in which various lands were being cultivated by sons only, in such case entry cannot be said to record any partition effected between sons.  At the highest, it records the family arrangement.  

Hanumath Bhimappa Sanadi Vs. Rudrappa Thammana Sanadi reported in 2006(1) A.B.R. (NOC), 65 (Kant.), wherein it is observed that a partition can be effected between members of joint family either under partition deed or by referring the matter to panchayatdars.  There can also be oral partition.  But, where no averment in written statement as to who were panchayatdars and as to whether panchayat took place and whether there was any pali patti or joint vardi prepared at time of alleged panchayat and oral partition, in such case, entries made in record of rights would not prove partition by metes and bounds.

Brajnanda Pradhan Vs. Sachidanand Pradhan reported in AIR 1990 Orissa, 29, wherein it is observed that where the evidence shows that the members were living and cultivating separately for convenience, it cannot be inferred that the partition is effected.  

Kashinathsa Vs. Narsingsa reported in AIR 1961 Supreme Court, 1077, wherein it is observed that the partial partition is permissible.

1. Kesharimal Jivji Shah Vs. Bank of Maharashtra reported in 2004(3) Mh.L.J., 893, wherein it is observed as under.
      “An order issuing the interlocutory injunction is issued with a view to preserve and protect status-quo during the pendency of the suit or litigation.  The true effect of such an order is, therefore, preservation of status-quo prevailing as on the date of issuance of the order.  Any alteration in the status-quo as prevailing and directed to be maintained by the Court of law is not permissible except with leave or sanction of Court.  Transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law, confers no right,  title  or  interest  in the transferee, as it is no transfer at all.  The transferee cannot be allowed to reap the advantage or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other prohibitory direction or restraint came to be issued.  It is enough that the transferor is a party and the order was in force.”  

Satnam Overseas Ltd. Vs. M.V. Oocl Ability and ors. reported in 2009(4) ALL M.R., 102, wherein it is observed that where plaintiffs not placing appropriate evidence before Court, adverse inference will have to be drawn against plaintiff and the case of the plaintiff required to be seen with suspicion.  

Nivas Builders Vs. Chanchalaben Gandhi reported in 2003(3) Mh.L.J., 312, wherein it is observed that the plaintiff cannot be allowed to travel beyond the scope of its own pleadings.  The plaintiff is bound by its own pleadings and, if that be so, it must fail or succeed on its own pleadings. 

Laxmishankar Harishankar Bhatt Vs. Yashram Vaste reported in AIR 1993 Supreme Court, 1587, wherein it is observed that where there are no averments in the written statement as to who are other co-owners and what right they claim, suit cannot be dismissed for non-joinder of such vague plea.

Ksh.Achouba Singh and ors. Vs. L.Achouba Singh and ors. reported in AIR 1984 Gauhati, 39, wherein it is observed that allottees of other lands were not necessary parties and if they were, reasonable opportunity should be given to petitioner to add them.  It is further observed that civil court cannot dismiss suit for non-joinder of necessary parties without affording reasonable opportunity to plaintiff.  

Revanasiddappa and anr. Vs. Mallikarjun and ors.  reported in 2011(1) SCCR, 609, Supreme Court, the illegitimate children have no share in the ancestral property, but they have only share in the self-acquired property.

S.A. Halima Bivi Ammal Vs. S.A. Fatima Bivi reported in AIR 1987 Madras, 129, wherein there are observations as to who is the bonafide purchaser for value.

Smt. Kailash Pati Devi Vs. Smt. Bugneshwari Devi and ors. reported in AIR 1984 SC, 1802, wherein it is observed that the purchaser of the joint family property from a member of joint Hindu family, may have the right to file a general suit for partition against all members of the joint family, and, indeed, that may be the proper remedy for him to adopt to effectuate his purchase.  
M.V.S. Manikayala Rao Vs. M. Narasimhaswami reported in 1966 AIR (SC) 470, wherein it is observed as under.
“It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property.  The purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition.  The equity depends upon the alienation being one for value and not open any contractual nexus.  The purchaser does not become a tenant-in-common with the other members of joint family.  He is not entitled to joint possession with them.  The alienee's suit for partition must be one for partition of entire property and not for the partition of any specific idem of, or interest in, in the family property.  Such a suit, however, will not be technically on a par with a suit for partition filed by coparcener. Such a suit would not have the necessary effect of breaking up a joint ownership of the members of the family in the remaining property nor the corporate character of the family.”

Ranganayakamma and anr. Vs. K. S. Prakash reported in 2008(6) ALL M.R., 904, wherein it is observed that the pleading in the earlier suit between the parties is binding on them in subsequent proceedings proprio vigore, unless fraud was proved.  It is also observed in the said judgment that the compromise decree based on settlement will not be reopened except where fraud on party or Court is pleaded and proved.

Ashok Thapar Vs. Saral Enterprises reported in 2001(1) ALL M.R., 343, wherein it is observed that where the decree is passed as per consent terms, the consent is not given under any compulsive circumstances and it is not challenged, in such circumstances, such a decree cannot be set aside.

Anil Kumar Mitra and ors. Vs. Ganendra Nath Mitra and ors., reported in AIR 1997 SC, 3767.  The Hon'ble Apex Court has pleased to observe that where there is termination of joint family status and partition of joint family properties in earlier suit and the parties continuing to be the members of joint family by their acts even after partition, in such case, there should be cogent evidence in respect of reunion of their respective shares in joint family property and treating it as joint family property.  

Smt. Laxmibai Laxman Medhi and ors., Vs. Shri. Kesarimal Premchand Parmar reported in 2007(5) ALL M.R., 724, wherein it is observed that compromise decree creates an estoppel by judgment.

Byram Pestonji Gariwala vs. Union Bank of India and ors., reported in AIR 1991 SC, 2234, wherein it is observed as under.
  The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.  As stated by this Court in Shankar Sitaram Sontakke vs. Balkrishna Sitaram Sontakke, AIR 1954 SC, 352 :-
 “......it is well settled that a consent decree is as binding upon the parties thereto as a decree passed  by  invitum.   The  compromise having  been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of “res judicata”. ”


M/s. Ramsewak Vs. Sarafuddin reported in AIR 1991 Orissa, 51, wherein it is observed that the counter-claim filed after written statement, is maintainable and the counter-claim is not limited to money suit only. 

Smt. Parvathamma Vs. K. R. Lokanath reported in AIR 1991 Karnataka, 283, wherein it is observed that counter-claim has to be set up before recording of evidence commences.  

Nagnath Vs. Narsingh reported in 2009(3) Mh.L.J. 564, wherein it is observed that the counter-claim raised by defendant long after settlement of issues as well as recording of evidence of plaintiffs is over, is not permissible.  It was incumbent upon defendants to raise claim at the filing of written statement, as the cause of action has arisen before filing of the written statement. 

Atmaram Vs. Noormohammad reported in AIR 2007 Madhya Pradesh, 81, wherein it is held that where the counter-claim is filed by defendant not alongwith written statement, but filed subsequently, it cannot be dismissed at threshold on ground of limitation without framing of issues or recording of evidence. 

1. Hanumanthagouda Vs. Bandu alias Bandeppa reported in AIR 2001 Karnataka, 10, wherein the Hon'ble Karnataka High Court has pleased to discuss the judgment in Gureddi Vs. Thayamma as under.
“It cannot be disputed that the right to prefer counter-claim has been statutorily granted to defendant  in  order  to  avoid  multiplicity  of  suits between the same parties and the same subject matter though based on different causes of action and grounds.  Such a procedure helps rival parties to get their dispute adjudicated upon the same proceedings by leading same set of evidence and having common arguments.  But, if the defendant is permitted to raise a counter-claim even at a belated stage of trial i.e. after issues are framed and recording of evidence has commenced, then it will amount to reopening of trial and will not only led to wastage of judicial hours but it will also put the plaintiff to unnecessary litigation expenses.  For the above reasons, we hold that the defendant can filed his counter-claim even after filing of written statement but it should be before the commencement of evidence in the trial so that the issues are settled in relation to the counter-claim.”
Chandrakant Motwani Vs. State of Maharashtra reported in 2000(2) B.Cr.C. 413, Bombay High Court, wherein it is observed that conviction cannot be said to be illegal or unjustified on the ground that the panch witnesses turned hostile and more particularly when there were no reasons to discard the evidence of police officer, which is corroborated by an independent witness that the accused was seen engaged in dealing with gas cylinders. 

1. Kangal vs. Smt. Atwariya Devi reported in AIR 2002 Allahabad, 77, wherein it is observed as under.
      “Section 28 of the Act will become applicable only after the order of maintenance is passed.  Where the wife filed an application for grant of maintenance against husband and during pendency of said application husband sold property and died thereafter, wife cannot claim her right of maintenance against transferee since transferee had purchased the property for consideration before it was attached or any charge was created.”

Sk. Yusuf Vs. State of West Bengal reported in 2011 ALL MR (Criminal), 2365 (SC), wherein it is observed that if there is no evidence connecting the weapon recovered under section 27 of the Evidence Act, with the crime alleged to have been committed by the accused, in such case no inference can be drawn against accused.



Group Grampanchayat, Sasavane Vs. Sunanda Shamrao Bandishti reported in 2011(2) Mh.L.J., 424, wherein it is observed that Court is not required to determine title of deceased to any property.  It is required only to consider whether the persons claiming heirship certificate are the heirs of deceased.


 Mr. Mohammed Ali vs. Mohamamed Ismail Khan reported in 2001(4) All M.R., 297, wherein it is specifically observed that mere proclamation issued and duly published and no objections are reported in response to said proclamation, heirship certificate can be granted.    (In case of presumption of civil death also).

1. Vimal Madhukar Deshmukh and ors. Vs. Nagorao Babanrao Ghodaskar reported in 2008(3) Mh.L.J., 868, wherein it is observed as under.
     “The vendor of the plaintiff was owner of 5 acres of land and he put plaintiff in possession of land.  The contention of plaintiff that his predecessor had possessory title and therefore, he could transfer it to plaintiff cannot be accepted.  The reason is no person can transfer a better title than what he himself has and no person can transfer the property of which he is not the owner.” 




Will-deed :

Vijayaben Vashram Vs. State of Gujarat and ors reported in 1989 Gujarat 75, wherein it is observed as under.
        “A person who propounds the Will or produces the Will before the Court and wants the Court to rely upon the same has to prove that :
i)    the Will in question is the legal declaration of the intention of the deceased;
ii)      the testator when executed the Will was in a sound and disposing state of mind and
iii)      the testator has executed the Will of his own free will meaning thereby, he was a free agent when he executed the Will.  
It is also observed in the above judgment that the onus of proof is on the person, who propounded the Will is of two types, firstly, to discharge the burden as regard the legal and valid execution of will and secondly, to remove the suspicious circumstances surrounding the execution of Will so as to satisfy the conscious of the Court.


Kalavati Dinkar Adsule and ors. Vs. Rajaram Shidu Ghatge reported in 1997(3) Mh.L.J., 802, wherein it is observed that the onus of proof of Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testatmentary capacity and signature of the testator as required by law is sufficient to discharge the onus.

K. Laxmanan Vs. Thekkayil Padmini and ors., reported in 2009(3) Mh.L.J. 510, wherein it is observed as under.
“21.   When there are suspicious circumstances regarding the execution of the Will, the onus is also on propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine.  Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free.  In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.”  

Janardan @ Govind Vassudev Bhat and ors. Vs. Mortibai Ramchandra Bhat reported 2008(6) Mh.L.J., 386, wherein it is observed that where there is no evidence produced to show that at the time of execution of Will the testatrix was not in a fit state of mind to execute the Will and where the defendants had not set up a plea of undue influence nor a specific plea that at the time of execution of Will the testatrix was of unsound mind, it cannot be inferred that she was unsound mind at the time of execution Will.
The Hon'ble Bombay High Court in Shri. Shrikant Shankanwar Vs. Shrikrishna Navkudkar reported in 2003(1) All M.R. 1161, observed that the revenue officer has to make entry as per the registered document.   The question of legality of such document can be decided by Civil Court.
INCONSISTENT PLEAS   :  PERMISSIBILITY
(N. V. Dabholkar. J)
Dadabhau Shankar Ghodke and ors. Vs. Mohanlal Kanhyalal Agarwal and another.
2003(1) Mh.L.J. 446.
Civil Procedure Code, O. 6 R. 2 – Inconsistent pleas/defences in suit not prohibited by law.

Even inconsistent stands are not prohibited by law and allowed to be pleaded.  Even the Court will not be able to object to leading the evidence on inconsistent pleas and the party will be doing so at its own risk and peril.  There is no provision that enables the Court to dictate the party to elect the ground of attack or defence the party should persist by waiving other plea or ground of attack and defence, which is either inconsistent or in conflict with the one persisted.  When a party takes inconsistent pleas, ordinarily, it may abandon/destroy one, for success in another.  In a given case, two conflicting and inconsistent pleas may even destroy both the pleas, cases, grounds of attack or grounds of defence.  In a given case, party may sacrifice one for the success in the alternate plea.  This is a matter to be considered when the court enters the zone of appreciation of evidence and grant of relief in accordance with the case established.  There is nothing either in the Civil Procedure Code or in the Evidence Act, that prevents a party from pleading alternate pleas, whether consistent, complimentary or inconsistent and conflicting.  There is nothing in law that enables the trial court direct the party to plead the case in a particular direction and close down all remaining fronts.  
[Held, that the impugned order of the trial court directing defendant no. 1 to file pursis and elect one of the pleas as to whether they are owners by agreement of sale or they are owners by adverse possession in the suit filed by plaintiffs for declaration of title and possession of agricultural lands was bad in law and therefore quashed and set aside.




FAILURE TO FILE W.S. AND RIGHT OF DEFENDANT TO CROSS-EXAMINE.
(N. V. Dabholkar. J.)
Suryabhan Ranuba Wagh Vs. Shobha Bhimrao Pawar
2003(1) Mh.L.J., 512.
Civil Procedure Code, O 8, R. 5 – A defendant who has not filed any written statement crystallizing his defences as also specific contentions cannot be denied the right to participate in the process of hearing or to cross-examine the plaintiff -  However, the scope of cross-examination cannot be permitted to travel beyond limited object of pointing out falsity or weakness of plaintiff's case and in any case, it cannot be converted into presentation of defence theorty.
Merely because written statement is not filed, a suit cannot be treated as proceeding exparte against defendant nor right of defendant to participate in the process of hearing from the stage he appears is taken away by failure to file written statement of defence.  The defendant although can be allowed to cross examine witnesses, the scope of the cross-examination cannot be permitted to travel beyond limited object of pointing out falsity or weakness of plaintiff's case and in any case, it cannot be converted into presentation of defence theory.
Civil Procedure Code, Order 20 Rule 12
Shankar Manikrao Waghmare Vs. Bhaurao Bapurao Waghmaore
2012(3) Mh.L.J., 134         [S.S.Shinde.J]
(a) Civil Procedure Code, O. 20 R. 12 – Mesne profits – Trial Court directing enquiry in respect of mesne profits – In absence of any pleadings or prayers in the suit, enquiry in the mesne profits should not have been directed by the trial court.  2008(3) SCC 183.Rel.
(b) Bombay Prevention of Fragmentation and Consolidation of Holdings Act, S. 36-A, 36-B and 31- Consolidation Scheme – Purchaser of land not an adjoining owner – Party aggrieved by the sale transaction can take recourse to the remedy available under the Act by approaching the competent authority.



Section 5 of Indian Limitation Act    -  SUFFICIENT CAUSE 
Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors.,
AIR 1987 SC 1353    Supreme Court observed in paragraph no. 3 that-
The legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act fo 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'.  The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts.  It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court.  But the message does not appear to have percolated down to all the other Courts in the hierarchy.  And such a liberal approach is adopted on principle as it is realized that :
(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late;
(2) Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated.  As against this, when delay is condoned the highest that can happen is that cause would be decided on merits after hearing the parties.
(3) “Every day's delay must be explained” does not mean that a pedantic approach should be made.  Why not every hours delay, every seconds delay?  The doctrine must be applied in a rational common sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the order side cannot claim to have vested right in injustice being done because of a non deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on account culpable negligence, or on account of mala fides.  A litigant does not stand to benefit by resorting to delay in fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
Jyoti Bhagwat Thane Vs. Meerabai Suresh Dhawale 
2012(3) Mh.L.J., 221. 
Election Petition – Allegation of malpractice – Burden of proof lies on the petitioner.  
Exhibiting Document
Mr. Hemendra Rasiklal Ghia Vs. Subodh Mody
2008(6) Mh.L.J.(F.B.) 886,   2008(6) ALL MR 352.
 The Hon'ble Full Bench has laid down the following principles with regard to exhibiting the document and dealing with the objection.
 “92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows :
Answer to Question-A :
  As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit ;
 (ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;
(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case.”

Civil Procedure Code Order 13 Rule 4 : Exhibiting Document
Rekha Ramrao Bhujang Vs. Subhadrabai Keshavrao Bunage 
2012 (3) Mh.L.J. 249  (S. V. Gangapurwala, J.)
(a) Civil Procedure Code, O 13, R 4 – Exhibiting the document – proper 'exhibit' – Where the document is not exhibited according to Rule 4 of Order 13, Civil Procedure Code, it is not an exhibit in the eyes of law.
(b) CPC  O 13 R 4 – Exhibit of document – Admitting evidence in the suit – Particulars enlisted in Rule 4 have to be complied.
Civil Procedure Code, O 17 R 3 Scope
(Mrs. Roshan Dalvi. J)
ICICI Bank Ltd   Vs. Vikram Seth 2012(3) Mh.L.J., 394.

Civil Procedure Code O 9 RR.3, 13 and O. 17 R. 3 – Dismissal of suit for non-prosecution – Restoration of such suit would mean that Court sits in appeal against the order of dismissal  -  Entire purpose of Order 17, Rule 3 would be defeated if such an application is granted -  Order 9 can never apply to suits which have come up for hearing in which the plaintiff appears and fails to carry out the directions of the Court or otherwise prosecute the suit.
INCREASE IN NUMBER OF CHILDREN AFTER CUT-OFF DATE : DISQUALIFICATION UNDER SECTION 14(1)(j-1) OF THE BOMBAY VILLAGE PANCHAYATS ACT.
Dnyandeshwar Patiram @ Ratiraj Shirbhiye Vs. Divisional Commissioner, Nagpur and ors.
2012(3) Mh.L.J. 253 ( R.K.Deshpande, J.)
(a) Bombay Village Panchayats Act, S. 14(1)(j-1) Second Proviso – Object of – Operation of second proviso is restricted to a period of one year from the date of commencement of the Act – It does not provide protection in cases where a third child is born after a lapse of one year from the date of commencement of the Act nor does protect the cases where elections are held after a lapse of one year from the date of commencement of the Act.
(b) Bombay Village Panchayats Act, S. 14(1)(j-1) First Proviso – First proviso does not protect the cases where there is increase in the number of children specified in the main provision, after the cut-off date 12.9.2001.

Civil Procedure Code, Order 39, Rules 1 and 2 
[Supreme Court]
(P.Sathasivam and J. Chelameswar, JJ.)
Makers Development Services Pvt. Ltd., Vs. M. Visvesvaraya Industrial Research and Development Centre
Civil Procedure Code, Order 39 RR. 1 and 2 – Interim order of injunction – Basic principles to be considered by Court.
  It is settled law that while passing an interim order of injunction under Order 39, Rules 1 and 2 of Civil Procedure Code, 1908, the Court is required to consider three basic principles, namely, (a) prima facie case, (b) balance of convenience and inconvenience, and (c) irreparable loss and injury.  In addition to the abovementioned three basic principles, a Court, while granting injunction must also take into consideration the conduct of the parties.  It is also established law that the Court should not interfere only because the property is a very valuable one.  Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the Court must make all endeavours to protect the interest of the parties. 

2008(2) AIR Bom R 519   (Aurangabad Bench) (S.B.Deshmukh,J.)
Shamrao Ganpat Chintamani Vs. Kakasaheb Laxman Gorde
(A) Civil Procedure Code Order 39 Rr. 1, 2 – Temporary injunction – Grant of – Documentary evidence – can be considered by Court at stage of temporary injunction without formal proof – formal proof of documents according to provisions of Evidence Act necessary at time of deciding suit and not at stage of considering prayer for temporary injunction.
Seema Arshad Zaheer and ors., Vs. Municipal Corporation of Gr.Mumbai. 
[Supreme Court]     (S. B. Sinha & R. V. Raveendran, JJ)
2006(5) Mh.L.J. 218.
  The discretion of Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff i.e. firstly, existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; secondly when the need for the protection of plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and thirdly, clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.  In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.  In that light, in case on hand, the plaintiff has to prove that he is the owner and possessor of the suit property and he is in possession of the same.  

AIR 1996 BOMBAY 98            (NAGPUR BENCH)
(V. S. Sirpurkar, J.,)
Smt. Sarladevi Kundanlal Bandawar Vs. Shailesh Gourishankar Namdeo
Civil Procedure Code, Order 39, Rules 1, 2 – Injunction against interference with possession – Person in possession – Can claim it against everyone including rightful owner – Rightful owner cannot evict him by force – He has to follow due process of law.
AIR 1968 SC 1165, AIR 1972 SC 2299, AIR 1980 KER 224, FOLL.

AIR 1994 GAUHATI 105
State of Assam and anr. Vs. M/s. M. S. Associates.

(A) Specific Relief Act, S. 39, Civil Procedure Code, O. 39, Rr.1, 2 – Injunction against public authorities – Public interest should be considered alongwith other requirement for granting injunction.

Injunction – Against public authorities – Grant – Consideration.

When a question of granting injunction against public authorities areses, not only the three ingredients for the grant of injunction should be considered, but in addition to it, the public interest and/or public policy also is to be considered.  Otherwise, if the public interest or public policy is not considered, it will bring chaos to the society and cause distress to the public in general.  The Court cannot be used as an instrument/tool to cause injury to the society and/or loss to the community, the requirement of the society, the demand of the society, must be considered the court must be cautious if its order affects a large chunk of the society.  By exercising equitable jursidiction to give benefit to somebody, a larger interest cannot be sacrificed.  If injunction is granted, affecting the right of the community in general, it will be a dangerous precedent and court should not easily succumb to such prayer.




Dalpat Kumar and anr. Vs. Pralhad Singh and ors., reported AIR 1993 Supreme Court, 276, wherein it is observed that the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima-facie case”, in his favour which needs adjudication at the trial.  The existence of the prima-facie right and infraction of enjoyment of his property or the right is a condition for the grant of temporary injunction.   It is further observed that satisfaction that there is a prima-facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non interference by the Court to result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he need protection from the consequences of apprehended injury or dispossession.
BENEFIT OF EXCLUSION OF PERIOD OF NOTICE UNDER SECTION 15(2) OF LIMITATION ACT : ENTITLEMENT
[Supreme Court] (A.K. Ganguly and J.S. Khehar, JJ.)
Disha Constructions and ors., Vs. State of Goa.
(a) Limitation Act, S. 15(2) – Benefit of exclusion of period of notice cannot be taken away just because the appellant gave the notice under section 80, Civil Procedure Code before the expiry of the period of limitation – Said period of two months must be computed and benefits of exclusion of the said two months must be given to the appellants even if they had given the said notice within the period of limitation.
MOTHER OF CO-PARCENER CANNOT CLAIM PARTITION OF JOINT FAMILY PROPERTY.                    (C.L. Pangarkar, J.)
Ananda Krishna Tate Vs. Drupadibai Krishna Tate 
2010(3) Mh.L.J., 631
(a) Hindu Law – Joint family property – Alienation by a co-parcener of his share in the joint family property inter vivos – Suit at the instance of mother of the co-parcener not maintainable for setting aside alienation.
(b) Hindu Law – Joint family property – Suit by plaintiff against her sons for partition – plaintiff not being a co-parcener the suit was not maintainable.




HINDU SUCCESSION ACT, SECTION 23 (AS AMENDED) : FEMALE HEIR CAN SEEK PARTITION OF DWELLING HOUSE. 
Gajanan Sakharam Gadewar Vs. Anjanabai Sakharam Gadewar.
Hindu Succession Act, S. 23 (deleted by Act 39 of 2005) – Effect of deletion – Partition of dwelling house – Embargo contained in section 23 stood removed and a female heir can seek partition even of the dwelling house.

BAR UNDER ORDER 2 RULE 2 OF CPC  : APPLICABILITY.
Rajaram Dadu Kabnure Vs. Gunwanti Dhulappa Ketkale and ors.
2012(1) Mh.L.J., 360                                [G.S. Godbole, J.]
(a) Civil Procedure Code, O 2, R 2 – Suits for same causes of action – Bar under Order 2, Rule 2 – Not applicable when original suit was only for injunction and then suit for partition was filed.
 When the plaintiffs earlier filed a suit simplicitor for injunction, the subsequent suit for partition filed without obtaining leave under Order 2, Rule 2 of the Civil Procedure Code, 1908 was maintainable.  The original suit was a suit simplicitor for injunction and merely because that suit was filed, it cannot be held that the plaintiffs had any cause of action for filing a suit for partition.  The causes of action in both the suits are entirely different and distinct and hence the test for applicability of Order 2, Rule 2 of the Code is not satisfied.

(b) Hindu Succession Act, S. 23 (as it existed before its deletion by Amendment of 2005) – Suit for partition – Bar in respect of partition of dwelling house by female heir – Suit filed before 2005 – In appeal after 2005, decree for partition can be amended by applying amendment of 2005.
Ashta Lokmanya Nagari Sahakari Patsanstha Maryadit Vs. Ganesh Co-op. Spinning Mill Ltd
2008(2) AIR Bom R 525                      [S.C.Dharmadhikari, J.]
Civil Procedure Code, O. 21, Rr. 54, 58(3) – Execution of decree – Attachment of immovable property – Cannot be refused merely because there is mortgage or prior charge thereon.  Attachment of the immovable property in execution is permissible and merely because there is a mortgage or prior charge there is no impediment in doing so.  Attachment can be levied even if there is prior charge or mortgage of the Bank.



2012(5) Mh.L.J.198
Shaikh Salim Haji Vs. Kumar and ors.,
2006(1) Mh.LJ. (SC), 178.

Hemendra Rasiklal Ghia and ors. Vs. Subodh Mody and ors., 2008(6) Mh.L.J., (FB) 886 = 2008(6) Bom.C.R., 519.
“53. All the rules of procedure are the handmaid of justice.  The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice.  In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation.  Unless compelled by express and specific language of the Statute, the provisions of the Civil Procedure Code or any other procedural enactment ought not to be construed in manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.
56. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice.  Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice as held by the Apex Court, in the recent judgment in the case of M/s. R. N. Jadi and Subhashchandra, Brothers Vs. Subhashchandra, AIR 2007 SC 2571.”
In Shankar Finance Vs. State of A.P. (2008)8 SCC, 536.
this Court explained in what circumstances, the evidence of an attorney holder would be relevant, while dealing with a complaint under section 138 of the Negotiable Instruments Act, 1881 signed by the attorney holder of the payee .
This Court  held : 
A power of attorney holder of the complainant, who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the complainant and the attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the complainant payee, there is no reason why the attorney holder cannot be examined as the complainant.....In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined .
SALE OF ANCESTRAL PROPERTY FOR LEGAL NECESSITY : VALIDITY.
Mallaya Bapenna Mekkalwar Vs. Rajboina Bhemmaka Hanamantoo and ors., reported in 2008(3) Mh.L.J., 886,
Hindu Law – Co-parcenary property – Property held to be ancestral one – Defendant no. 1 and plaintiffs nos. 2 and 3 formed a co-parcenary – Plaintiffs 2 and 3 had a right in the property by birth – Defendant no. 1 sold the entire property comprising of two fields and houses to repay loan of societies – Loan not utilized for legal necessity – Act of selling both the fields as well as houses was most improper and imprudent – Sale not justified at all – In the circumstances, Appellate Court rightly passed decree for partition and separate possession determining share of plaintiffs in the property.

LEGAL NECESSITY -  BURDEN OF PROOF LIES ON ALIENEE.

Babu Mother Savavva Navelgund and ors. Vs. Gopinath reported in AIR 2000 Karnataka, 27, wherein the observations made by the Hon'ble Apex Court in the case of Smt. Rani Vs. Smt. Santa Bala Debnath reported in AIR 1971 Supreme Court, 1028 is mentioned.  It reads as under.
      “Legal necessity to support the sale must, however, be established by the alienees.  Sarala owned the land in dispute as a limited owner.  She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate.  In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to averted, and the benefit to be conferred upon the estate in the particular    insistence   must   be   considered.    Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient.  The onus of proving legal necessity may be discharged by alienee by proof of actual necessity or by proof that he made proper and bonafide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.”
 In Shankarlal Ramprasad Ladha Vs. Vasant Chandidasrao Deshmukh and ors., reported in 2009(1) Bom.C.R., 488. In para no. 16 of the said judgment, it is specifically observed as under.
16.  Before I embark upon scrutiny of evidence tendered by the parties, let it be noted that the concept of legal necessity is illustrated under Article 243 of the Hindu Law (By Mulla - 20th Edition (Vol. I) page 371).  It is well settled that “legal necessity” does imply pressure on the resources of the joint Hindu family.  So, if it is proved that there was considerable strain on financial resources of the joint Hindu family at the relevant time, then the sale transaction may be justified.  The alienation by Manager of the joint Hindu family may be permissible if it is for the benefit of the estate.  Article 244 of the Hindu Law (By Mulla) would make it manifest that purchaser of the joint Hindu family property is under obligation to discharge burden of proof to prove existence of the legal necessity or that his having made proper and bonafide inquiry as to the existence of such necessity.”

1970 DGLS(Soft.) 422
 IN THE SUPREME COURT OF INDIA 

 Equivalent Citation :-
 1971 AIR(SC) 1028,1970 DGLS(Soft.) 422,1970 (3) SCC 722

 Before :- A.N.Grover : J.C.Shah : J J

 Rani
 Versus
 Santa Bala Debnath

 Case No. : 1943 of 1966
 Date of Decision : 14-10-1970

 Acts Referred:
 Code of Civil Procedure,O.22

 HEADNOTE:
 EVIDENCE ACT, 1872--Section 114(g) -- Adverse inference -- Withholding of evidence -- Fact within the special knowledge of a person withheld by such person -- Court may draw adverse inference against such person. 

 Hindu Law -- Joint family property -- Alienation by limited owner -- Absence of consideration -- Burden of proving that consideration was not received is on the person alleging the same. 

 Hindu Law -- Joint family property -- Alienation by limited owner -- Proof of legal necessity -- Effect of recital of legal necessity in Sale Deed. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession. 

 Joint family property -- Alienation by limited owner -- Absence of consideration -- Burden of proving that consideration was not received is on the person alleging the same.

 Joint family property -- Alienation by limited owner -- Proof of legal necessity -- Effect of recital of legal necessity in Sale Deed.Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be 
justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.

BOMBAY VILLAGE PANCHAYATS ACT, SECTION 180.
Gram Panchayat, Kuhi and anr. Vs. Vijaykumar Radheshyam Bhalotiya reported in 1986 Mh.L.J., 618
Bombay Village Panchayats Act, 1958, S. 180(2) – No notice under section 180 is necessary in a suit filed for injunction in regard to future actions apprehended by plaintiff.
The provisions of section 180(2) of the Bombay Village Panchayats Act have no applicability to a case where a suit for permanent injunction in regard to future actions which are apprehended by the plaintiff is filed.  The provisions relating to notice under section 180(2) are not applicable to future actions.
Civil Procedure Code, Order 9, Rule 8 & Land Acquisition Act.
Mahadeo Gopala Shinde Vs. Nivrutti Shripati Jadhav and ors.,
2007(2) Mh.L.J., 362.
(b) Land Acquistion Act, 1894, Ss.4(1), 6, Civil Procedure Code, S.9 and Constitution of India, Art. 226. 
Civil Court- Jurisdiction – Acquisition of land – Award – Suit for declaration filed before Civil Court – Civil Court has no jurisdiction to go into question of validity or regularity of notification under section 4(1) or of declaration under section 6 – Enquiry could be done only by way of writ petition under Article 226 of Constitution – Suit filed before Civil Court not maintainable. (1995)4 SCC 229. Rel. (para 10).
SUCCESSION ACT, SECTION 370
(Mrs. Roshan Dalvi. J)
Snehala Pramod Desai   [ 2012(5) Mh.L.J., 340]
Succession Act, Ss. 370 and 379 – Petition for issue of succession certificate in respect of the securities left by the deceased husband of the petitioner – Waiver of Court fee vis-a-vis her 1/3rd share – Not permissible – Transmission of shares and securities, would not be on par with “moneis payable to the legal heirs of her deceased-husband on account of his death” nor it is a property dispute which the widow is constrained to prosecute or defend.
(It is settled position in law that a woman is entitled to waiver/exemption of court fee only in respect of applications for maintenance in matrimonial disputes or with regard to divorce and family law matters and not for property disputes.  It is settled position in law that property disputes relating to the grant of probate or Letters of Administration are not exempted from the payment of Court fees even if they are filed by female litigants.....)
  Vidyadhar Vs. Manikrao reported in 1999 (3) SCC 573 /1999 DGLS (Soft) 298 can be referred.  It is specifically observed in para no. 17 by the Hon'ble Apex Court as under.
      “Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct” 
       The same has  been  held  in a series of decisions passed by various High Courts and the Privy Council beginning from a decision in Sardar Gurubaksh Singh Vs. Guru Dayal Singh and anr. AIR 1927 Privy Council, 230.  This was followed by the Lahor High Court in Kirpa Singh Vs. Ajai Pal Singh and ors. AIR 1930 Lahor, 1 and the Bombay High Court in Martand Kharagfit Carpentor Vs. Narsingh Nandkishor Ravat AIR 1970 Madhya Pradesh, 225.  Also followed the Privy Council decision in Sardar Gurubhksh Singh's case (supra).  The Allahabad High Court in Arjun Singh V. Virendar Nath and anr., AIR 1971 Allhabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him.  Similarly, a division bench of the Punjab and Hariyana High Court in Bhagwan Dass Vs. Bhishan Chand and ors., AIR 1974 Punjab and Hariyana, 7, drew a presumption under section 114 of the Evidence Act against a party who did not enter into witness box.”  


Prabhoo Vs. Doodh Nath and ors. reported in AIR 1978 Allhabad, 178.  I have gone through the observations made in the said judgment.  The relevant para of the said judgment reads as under.
11.      One of the tests to determine whether mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the construction being made by a co-owner on a joint land, did so at the earliest or, waited till the constructions had been completed.  In the first case, injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of the constructions to believe that he could make it, and in doing so spend money and effort.  

     In (Dorab Cawasji Warden Vs. Coomi Sorab Warden and others)5,  1990(2) Bom.C.R. 614(S.C.) : 1990(2) S.C.C. 117 the Supreme Court has held that the  orders in the nature of  mandatory   injunction  can be passed even at the interlocutory stage. 



ADVERSE POSSESSION.
P. T. Munichikkanna Reddy and ors., Vs. Revamma and ors.,
2007(6) Mh.L.J., 336    [Supreme Court]
a) Adverse Possession – Claim of – Two-pronged enquiry is required – Proof of adverse possession – Intention to dispossess is essential.
Held, that adverse possession is a right which comes into play not just because someoe loses his right to recliam the property out of continuous and wilful neglect but also on account of possessor's positive intent to dispossess.  Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and sstep into the shoes of the paper-owner of the property.  Therefore, to assess a claim of adverse possession, two-pronged enquiry is required : 1. Application of limitation provision thereby jurisprudentially “wilful neglect” element on part of the owner established.  Successful application in this regard distances the title of the land from the paper-owner.  2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor.  Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.  Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omision (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims  at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed.  There is no merit in this appeal which is dismissed accordingly.
b) Limitatin Act Arts. 64 and 65 -  Adverse possession – Onus of proof – The pleas on title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced – Once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession.
c) Adverse possession – Dispute of adverse possession falls within the new dimension of human rights.

Limitation Act, Article 64
Narendra Voikunt Raikar Vs. Amaral Pereira [2007(3) Mh.L.J., 252] [P.V. Kakade,J.]
a) Limitation Act, Art. 64 – Adverse possession – pleadings.
It is well settled law that before a party can succeed in establishing title on the basis of adverse possession, a plea to that effect must be specifically raised.  It is a cardinal principle that a person who claims adverse possession must plead to that effect and must show on what date he came into possession, what was the nature of his possession, whether the fact of his adverse possession was known to the owner and what was the period of such adverse possession.  Both the Courts below came to the conclusion that the plaintiff has proved that he had acquired title by adverse possession in respect of the mill.  It is apparent from the record that plaintiff had pleaded that since the year 1973 he was in possession of the mill and running the same without any objection from the defendant.  Therefore, on this pleading, it was found that alleged ownership of the defendant was successfully challenged by the plaintiff that invoked the doctrine of ownership by adverse possession.  
b) Adverse possession – Decree declaring plaintiff as owner of the property in question by adverse possession – Further directions by the Court to Collector to amend the survey record held unwarranted – Decree-holder would be entitled to move the Collector independently in this regard. 

 Narayan Vs. Trimbakrao reported in AIR1988 Bombay, 94, wherein it is observed that where the suit is based on title, plea as to adverse possession, time taken for pursuing proceedings before Civil Court bona-fide and in good faith, to be excluded in computing the limitation

R. S. Maddanappa Vs. Chandramma 
AIR 1965 SC 1812
a) Evidence Act – Section 115 – Estoppel by conduct – Conduct held not sufficient to justify inference of estoppel.
b) Person concerned knowing true position relating to title in property in his possession – He cannot plead that he was induced to hold erroneous belief by reason of conduct of real owner of that property.
c) Estoppel by representation – Beyond provisions of S. 115 there is no equitable estoppel – Doctrine of estoppel – Its foundation and object – Matter to be proved by one who sets up estoppel against another.
d) Transfer of Property Act Section 51 – Improvements made in property belonging to another – Person making improvements knowing that he has no title in property – He cannot demand payment for improvements.

HINDU SUCCESSION ACT, SECTION 22 : RIGHT OF PRE-EMPTION : ENTITLEMENT      [ V. R. Kingaonkar, J.]
Bharat Machindra Parekar and anr. Vs. Anjanabai Babarao Thaware  2007(6) Mh.L.J., 706.
A) Hindu Succession Act S. 22(1) – Right of pre-emption – Entitlement – Preferential right of one co-heir to purchase the property of the other co-heirs – Right is akin to the right of pre-emption – Right of pre-emption is not obliterated after the transfer of the interest is completed through an instrument like sale deed or gift deed – There is no provision in eitherof the sub clauses to take away right of the other heirs, who are not party to such transfer of interest, to acquire the interest of the heir/heirs who proposed to transfer their interest or actually transferred the same.
  “immovable property of an intestate” also includes agricultural land of an intestate.  The agricultural lands are “immovable properties” within the meaning of section 3 of the Transfer of Property Act.

2004(3) Bom.C.R. 557
Shobha Stayanarayan Birla Vs. Janabai Parshuram.
Truth of contents of document should be proved.


2002(6) Bom. C.R., 507    (Aurangabad Bench)
Vitthal Ramrao Ingale (Patil) Vs. Navalbai Digambar Deshmukh. 
Procedure for proving the document..... 
(Even the document is of 30 yrs old. as per section 90 of the Evidence Act, its contents should be proved).



Section 135 of the Bombay Police Act
Compliance of section 163 is necessary..
State of Maharashtra Vs. George Fernandez and ors.,
1985(1) Bom. C.R., 696   [M.S. Jamdar, J.]

Bombay Police Act, 1951  sec. 37(3) and 163 – Prohibitory Order - “Promulgation” - Held, there is basic difference between “advertisement” and “news item” published in newspaper –  Held, public order and public peace or public safety are synonymous.  On facts held, that there was no refusal to hold meeting.  Prosecution failed to prove that order in question was publicly promulgated as contemplated by section 163 of the Bombay Police Act.

Sahebrao Kisan Jadhav And Others vs State Of Maharashtra on 19 August, 1991
Equivalent citations: 1992 (1) BomCR 423, 1992 CriLJ 339 
Bombay High Court
It is well settled law that even in cases where an unlawful assembly has taken place and where some of the accused are not traceable or are not identified, the  charge can still be sustained even if those persons were others unknown. The evidence in this case is overwhelming to indicate that eight persons had taken part in the assault and that all eight of them were acting in consort, the present four appellants being part of that unlawful assembly. To my mind, therefore, the lack of identification of the remaining four accused does not in any way weaken the conviction u/S. 149 of the Indian Penal Code that too on a highly technical ground.


No Restoration of complaint dismissed on the ground of non-appearance of complainant. Section 249 and 256 of Code of Criminal Procedure, 1973.
The Hon'ble Supreme Court has observed in case of Maj.Genl.A.S.Gauraya Vs. S.N.Thakur [1986 AIR(SC) 1440 : 1986(2) SCC 709], that in case complaint is dismissed by Magistrate on the ground of non-appearance of the complainant and accused acquitted accordingly, the Magistrate has no jurisdiction to restore and revive the complaint on the subsequent application of the complainant. Discharge and acquittal of the accused on the ground of non-appearance of the complainant is a final order and in the absence of any specific provisions in the Code a Magistrate cannot exercise any inherent power.

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