Questions and answers on law Part 42

 

Q 1:- Which provision of cpc says that every application shall be supported by an affidavit ?

Ans: Section 141 CPC:- Miscellaneous proceedings.

The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

1[Explanation.-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]

Order 6 Rule 15(4) of CPC says that every pleading should be supported by an affidavit

Therefore, in my opinion, every application making factual averment should be on affidavit as per S 141 of CPC and O 6 R 15(4) of CPC.

Q 2:- In an execution of an injunction decree,decree holder contends that the decree of injunction is being violated by judgment debtor however the decree holder has not brought any proof other than an affidavit by which violation can be proved. On other hand the judgment debtor has given proof of his ill health and not disobeying the decree. What recourse should be followed.

Ans:-The Supreme Court in Kanwar Singh Saini v. High Court of Delhi (2011 (4) KHC SN I) observed  that,in case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution Court under Order 21 Rule 32 of C.P.C which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross- examine the witnesses as opposed to the proceedings in contempt which are summary in nature.

Q 3:- Case is under section 500 IPC along with some other offences.However cognizance is taken upon police report in violation of section 199 crpc.Presently the case is at the stage of argument. Can it be said that the trial proceeding is nullity as the cognizance order was itself wrong?

Ans:-Sub-section (1) of Section 199 of the Code stipulates that no Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by, the offence. The offence punishable under Section 500 of the Indian Penal Code is in Chapter XXI of the Code. Section 199(1) Cr.P.C provides that no court shall take cognizance of an offence provided under Chapter XXI of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. The court has no power to take cognizance of the offence punishable under Section 500 I.P.C on the basis of the final report filed by the police. if a Magistrate takes cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal (Narasimhan v. Chokkappa : AIR 1972 SC 2609).

Cognizance taken only of the offence under Section 500 IPC is a nullity . Since the case is at the stage of hearing, the Court can either convict or acquit the accused for the other offences, depending upon the evidence in the case, if any one of the other offences is a cognizable one. Instead of acquitting accused for an offence U/S 500 of IPC, court can permit complainant to follow proper procedure for prosecution of accused U/S 500 of IPC.

Q 4 :- Conviction was upheld by appellate court. But as accused was not present before the appellate court,  the record was sent back to the trial court for compliance of conviction order. The accused wishes to surrender before trial court and move bail application for preferring appeal to Hon'ble High Court. What recourse should be taken in such case?

Ans:- Accused was convicted by trial court. Said order is upheld by appellate court. Appellate court has sent back the file by ordering the execution of the main sentence, keeping the conviction as it is. Therefore,  Magistrate court has to follow the order of appellate court  only. In this case section 389 of CRPC is not applicable. Trial court has no other the option except to comply the order of appellate court.

Q 5:- Can a suit for declaration of a decree passed by revenue court as being void due to fraud, lie in the civil court? The said decree has been upheld upto board of revenue though ex parte. Further the impugned decree is with reference to declaration of title of agricultural land which is within the domain of revenue court.

Ans:- Any type of declaratory suit can be presented in a civil court under section 9 of CPC. In this case the suit can be presented in the civil court on the ground of fraud and the civil court has the right to declare all types of such orders void.

Q 6:- Complainant is APMC(Agricultural Produce Marketing Committee). Accused is acquittal by CJM in an offence under sec.420 & 408. Is appeal maintainable before sessions court ?

Ans:- Just as there is an appeal against the acquittal in a private complaint. In the same way, there will be an appeal to the High Court in this complaint too.

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