The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu, July 07, 2009. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.
TOPICS AVAILABLE IN THIS BLOG
- ► 2009 (32)
- ► 2010 (26)
- IMPORTANCE OF SOURCE OF TITLE RATHER THAN LONG ENT...
- CRIMINAL PROSECUTION ON GOVERNMENT LAND ENCROACHER...
- CONCEPT OF EQUALITY, JURISDICTION, WRONGS AND MIS...
- CHANGES IN HINDU PERSONAL LAWS
- PROOF OF A DOCUMENT MERE MARKING OF DOCUMENT IS NO...
- NO LITIGANT IS HAVING RIGHT TO WATE COURT TIME
- EVERY COURT HAS TO FOLLOW STATUTORY REQUIREMENTS E...
- VENDORS RIGHTS-SPECIFIC PERFORMANCE - ANCESTRAL PR...
- GIFT DEED AND ITS VALIDITY EXPLAINED BY JUSTICE S...
- COURT CANNOT IMPOSE COSTS EXCEEDING ITS LIMITS UND...
- EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TE...
- WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT...
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EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TERMS OF THE PROVISIONS OF S. 63(C) OF THE SUCCESSION ACT, 1925
The Hon’ble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs Bachan Kaur JUSTICE S.B. Sinha JUSTICE Dr. Mukundakam Sharma New Delhi February 12, 2009, Succession Act, 1925 : S. 63(c) - Execution of a Will is required to be proved in terms of the provisions of s. 63(c) of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was attested by nine independent persons. Three of them in fact had been examined. The High Court while holding that a doubt is cast on its validity by reason of active participation of one of the sons, failed to notice that nine other independent witnesses attested the Will. Importance cannot be attached to the fact that although the Sarpanch scribed the Will in Urdu, he at more than one place signed in English. In a village, a person may be more proficient in the vernacular language than English although he may be able to sign his name in English. If the Will was otherwise proved to be genuine and the statutory requirements therefor were satisfied, only because the panchayat register was not produced, the same by itself would not lead to the conclusion that the Will would be held to have not been executed, particularly when two courts competent to arrive at findings of fact held it otherwise.
COURT CANNOT IMPOSE COSTS EXCEEDING ITS LIMITS UNDER CPC AND ALSO IT CANNOT DIRECT THE COSTS TO BE PAID TO LEGAL SERVICES AUTHORITY
The Hon’ble Supreme court of India in ASHOK KUMAR MITTAL VS. RAM KUMAR GUPTA & ANR. 2009(1) SCALE 321 , Justice R V Raveendran, Justice J M Panchal, New Delhi; January 9, 2009 “Exemplary costs - Imposition of - Courts should not exceed the limitations placed by CPC in this regard - Principles and practice relating to administrative law matters cannot be imported mechanically to civil litigation governed by the Code - Levy of huge costs in selected matters made payable to legal Services Authorities or non-party charitable organizations should be avoided - As regards the costs, courts should not exceed or overlook the limitations placed by the Code of Civil Procedure, 1908 with reference to costs in civil litigation. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code. On the aspect of the recipient of the costs, once the High Court held that costs had to be paid to the State, it should not have directed payment of the costs to the High Court Legal Services Committee, which being a statutory authority under the Legal Services Authorities Act, 1987, is not the 'State' that spends money on providing judicial infrastructure. Levy of huge amounts as costs in selected cases, made payable to Legal Services Authorities, may invite adverse comments and evoke hostility to legal services in general. The Court has also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.”
ASOKAN VS LAKSHMI KUTTY 2007(13) SCR 901, It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift.
The definition of gift contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are: (i) the absence of consideration; (ii) the donor; (iii) the donee; (iv) the subject matter (v) the transfer; and (vi) the acceptance. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance.
EVERY COURT HAS TO FOLLOW STATUTORY REQUIREMENTS EXCEPT BY SUPREME COURT IN EXCEPTIONAL CIRCUMSTANCES
In Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415, Supreme Court held that an order of waiving the statutory requirements can be passed only by Supreme Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other court.
In Dr. Buddhi Kota Subbarao v. K. Parasaran & Ors. AIR 1996 SC 2687, Supreme Court has observed as under:- “No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.”
In Jai Singh v. Union of India AIR 1977 SC 898, Supreme Court while dealing with a similar issue held that a litigant cannot pursue two parallel remedies in respect of the same matter at the same time. This judgment has subsequently been approved by Supreme Court in principle but distinguished on facts in Awadh Bihari Yadav v. State of Bihar AIR 1996 SC 122; and Arunima Baruah v. Union of India (2007) 6 SCC 120.
In Narbada Devi Gupta Vs. Birendra Kumar Jaiswal (2003) 8 SCC 745, where Supreme Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue".
The President has assented to the Personal Laws (Amendment) Act, 2010 on 31st August, 2010 and it is published in the Gazette of India as Act 30 of 2010 on 1st September, 2010. The Act has amended the Guardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956.
The Act is aimed at bringing gender equality in the matter of guardianship under the Guardians and Wards Act, 1890 and in the matter of giving in or taking in adoption a son or a daughter by father or mother under the Hindu Adoptions and Maintenance Act, 1956.
Under Clause (b) section 19 of the Guardians and Wards Act, 1890, mother was not included as Guardian along with father. The Law Commission of India in its Eighty-third Report on “the Guardians and Wards Act, 1890 and certain provisions of the Hindu Minority and Guardianship Act, 1956”, vide paragraph 6.83, had inter alia recommended amendments in clause (b) of section 19 of the said Act to include mother along with the father for the purpose of removing the gender inequality. The recommendations has been accepted and implemented by the enactment.
Clause (c) of section 8 of the Hindu Adoptions and Maintenance Act, 1956 incapacitates a married woman from taking in adoption merely on the basis of her marital status and is discriminatory in nature. Therefore, section 8 has been amended to give similar right to a female Hindu, irrespective of her marital status, as that of a male Hindu.
Similarly, sub-section (2) and (3) of section 9 curtails the right of mother to give in adoption if father is alive or is of sound mind or has not renounced the world completely and finally. The rights of father and mother under sub-sections (2) and (3) are discriminatory in nature. Therefore, section 9 of the Hindu Adoptions and Maintenance Act, 1956 has been suitably amended to give similar right to a female Hindu.
CONCEPT OF EQUALITY, JURISDICTION, WRONGS AND MISTAKES DISCUSSED WITH CITATIONS BY JUSTICE M SHARMA & JUSTICE A.R. DAVE
In Sarup Singh and Anr. Vs. UOI and Anr. – Decided on Nov 25 2010 The Hon’ble Judges of Supreme court: Justice Mukundakam Sharma and Justice Anil R. Dave, delivering judgement in Civil Appeal No. 3568 of 2005 quoted following judgements of supreme court
In Chiranjilal Shrilal Goenka (deceased) Through Lrs. v. Jasjit Singh and Others reported in (1993) 2 SCC 507 this Court stated thus: "18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party.............."
In the case of Dwaraka Das v. State of M.P. and Another reported in (1999) 3 SCC 500 this Court described the scope of Section 152, C.P.C. thus: "6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order.............."
There are number of decisions of this Court wherein it has also been held that a wrong judgment given by the High Court cannot be taken as precedence for perpetrating such wrong. In the case of State of Haryana and Others v. Ram Kumar Mann reported in (1997) 3 SCC 321 held as follows: - "3. The question, therefore, is whether the view taken by the High Court is correct in law. It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on 18-5-1982. On and from that date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already become effective by acceptance on 18-5-1982...The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Article 14 for reinstatement? The answer is obviously "No".. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits."
In the case of State of Bihar and Others v. Kameshwar Prasad Singh and Another reported in (2000) 9 SCC 94 this Court held thus: - "30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner... Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: (SCC p. 465, para 9) "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secy., Jaipur Development Authority v. Daulat Mal Jain reported in 1996 (7) SCALE 135 this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: (SCC pp. 51-52, para 28) "Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
Smt. Lalitha Sastry Vs. State of Karnataka ILR 2008 Kar 4520 Honourable Judges: N. Kumar, J. Date of Judgement: 22/09/2008 From the aforesaid circular it is clear the Government is now convinced that an opportunity should be given to all those alleged encroachers of Government land before any proceedings are initiated under Section 192A of the Act. In fact it stipulates a procedure under which a show cause notice is to be given calling upon those alleged encroachers to file their objections within 15 days. If no objections are received authorities are called upon to visit the spot, conduct a Mahazar in the presence of the villagers, obtain their signatures and thereafter to initiate criminal proceedings if they are satisfied that there is encroachment. In the event of alleged encroachers producing documents to examine the same and only in the event of the said documents are found to be fabricated or duplicate, to initiate proceedings under Section 192A of the Act. In fact the said procedure contemplated by the Government satisfy the requirement of principles of natural justice, an opportunity is given to these persons to realise whether they have occupied a Government land and if they are convinced to surrender possession to avoid criminal prosecution.
Boramma Vs. Srinivasa and Others 2009 (2) KarLJ 385 Honourable Judges: K. Ramanna, J. Date of Judgement: 09/01/2009, Regular Second Appeal No. 381 of 2002, Of course, the revenue documents disclose that since from 1981-82 the name of plaintiff 2 and plaintiff 1 appear in revenue records as possessor of suit lands. But these revenue records cannot be termed as title deeds to confer on them the right of ownership over suit properties. The plaintiffs have not placed on record any other deed or document to prove the source of title. Further, they have not disclosed any particulars for change of khata in the name of plaintiffs. No iota of evidence is placed on record to show why her name is entered in the revenue records and how she become owner of the suit property and whether there was any consideration passed therein or the same was by way of any family arrangement. Such things has not been pleaded nor proved before Court. Mere entry in the revenue records will not confer any title to the plaintiffs and on the basis of the said entries, the plaintiffs cannot be termed as owners of suit properties. State of Himachal Pradesh v Keshav Ram and Others, AIR 1997 SC 2181: (1996)11 SCC 257: ILR 1998 Kar. 1 (SC), it is held as under: "Entry in a revenue record or papers by no stretch of imagination can form the basis for declaration of title". Further, in case of Smt. Sawami v Smt. Inder Kaur and Others, AIR 1996 SC 2823: (1996)6 SCC 223 wherein it is held thus: "Mutation of name in revenue records, effect, held, does not create or extinguish the title nor has any presumptive value on title, it only entities the person concerned to pay land revenue".