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WHEN DEFENDANT TRANSPOSED AS PLAINTIFF WRITTEN STATEMENT SHOULD BE READ AS PLAINT - PLEADINGS AS EXPLAINED BY SUPREME COURT

JUSTICE M Saldanha, JUSTICE M R Prasad of Karnataka High Court in case of Veerabhadrappa And Anr. vs Smt. Gangamma And Anr. Reported in AIR 2003 Kant 348, 2004 (3) KarLJ 13 when a defendant gets transposed as one of the plaintiffs, me written statement filed by such defendant gets transposed and would form part of the plaint. The necessity of amendment of a plaint at that stage is only for convenience-sake. In other words, the original plaint and the written statement of the defendant No. 2 who had got transposed as a plaintiff will have to be read together. In other words, such a written statement would partake the nature of plaint and the Courts of law administering justice in an adversary system of administration of justice cannot afford to take any other view and should read the said written statement as a plaint. At this stage, it is necessary to refer to a decision of the apex Court, relied upon by the learned counsel for plaintiffs, reported in AIR 1987 1242, wherein the Supreme Court has held that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. The Supreme Court has further held that it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of pleadings, instead the COURT must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. On careful perusal of the said written statement, there has been a specific mention that the second plaintiff and her mother first plaintiff succeeded to the estate of deceased Smt. Shivalingamma and in fact, there had been a specific prayer for joint declaration of title in respect of 'B' schedule properties in favour of both the plaintiffs.

ADMISSIBILITY OF A DOCUMENT

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another reported in [(2003) 8 SCC 752] "20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."


In a decision reported in Bipin Shantilal Panchal vs. State of Gujarat and another (2001 (3) SCC 1), the Apex Court was pleased to consider the delay in disposal of a criminal case, where the Trial Court disallowed the objections of admissibility of certain documents, It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. .... When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

WHEN IMPORTANT FILE IS NOT PRODUCED BEFORE COURT TO COVER UP FRAUD INVOLVED IN THE MATTER

Apex Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., AIR 1968 SC 1413, 1968 SCR (3) 862 for non-production of the file, which is a very important file in this case. The Government was reluctant to produce the said file because of the fraud involved in the matter. That is the reason why it was not stated in the letter produced along with the aforesaid memo that further efforts will be made to trace out the file and the same would be produced soon after it is traced. On the other hand, it is stated that this Court may proceed to pass appropriate orders in the case. Even till this day the file has not been produced and no attempt is made to trace it. This would clearly go to show that the Government does not want to produce the said file. Had the said file been produced before this Court, the truth would have come to light and the extent of collusion, fraud and conspiracy involved in the matter could have been exposed. This is yet another case to hold that fraud unravels everything.

SPECIFIC PERFORMANCE AND CASE LAW

The requirement to comply with the mandatory provisions of Section 16(c) of the Specific Relief Act came up for consideration of this Court in Ouseph Varghese vs. Joseph Aley & Ors. (1969) 2 SCC 539 wherein it was held: "The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj vs. D.L.F. Housing and Construction (Private) (Ltd.) and Another, [reported in 1968 (3) SCR 648] that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable."

Without noticing the said decision, however, another two Judges bench in R.C. Chandiok and Anr. vs. Chuni Lal Sabharwal and Ors. reported in (1970) 3 SCC 140 stated: "6.Readiness and willingness cannot be treated as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract."

In Abdul Khader Rowther vs. P.K. Sara Bai and Ors. reported in AIR 1990 SC 682 this Court followed Ouseph Varghese (supra) holding: "His plaint does not contain the requisite pleadings necessary to obtain a decree for specific performance. This equitable remedy recognized by the Specific Relief Act cannot be had on the basis of such pleadings and evidence."

The question again came up for consideration before a three Judge bench of this Court in Syed Dastagir vs. T.R. Gopalakrishna Setty reported in (1999) 6 SCC 337. "13. It was held in the case of R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140 that readiness and willingness cannot be treated as a strait-jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. Finally, we have no hesitation to hold that the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of the obligation under the contract but by tendering the total amount shows he has performed his part of the obligation. We also construe such a plea to be a plea of "readiness and willingness" as required under Section 16(c). In view of the aforesaid findings we hold that the High Court committed an error by defeating the claim of the plaintiff on the basis of a wrong interpretation of his plea in terms of the said section." ................."10. ..It is true that in the pleading the specific words "ready and willing to perform" in this nomenclature are not there but from the aforesaid plea, could it be read that the plaintiff was not ready and willing to perform his part of that obligation ? In other words, can it be said that he has not pleaded that he is "ready and willing" to perform his part ? Courts cannot draw any inference in the abstract or to give such hypertechnical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then it cannot be said there is non-compliance of the said section."


Motilal Jain vs. Ramdasi Devi and Ors. reported in (2000) 6 SCC 420. "9.It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale. In the instant case a perusal of paras 6 to 11 of the plaint does clearly indicate the readiness and willingness of the plaintiff. The only obligation which he had to comply with was payment of balance of consideration. It was stated that he demanded the defendant to receive the balance of consideration of Rs. 8000 and execute the sale deed. The defendant was in Patna (Bihar) at the time of notices and when he came back to his place the plaintiff filed the suit against him. In support of his case, he adduced the evidence of PW 1 and PW 2. The plaintiff had parted with two-thirds of the consideration at the time of execution of Ext. 2. There is no reason why he would not pay the balance of one-third consideration of Rs. 8000 to have the property conveyed in his favour."


In Pushparani S. Sundaram and Ors. vs. Pauline Manomani James and Ors. reported in (2002) 9 SCC 582 it is stated: "5So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved. ................ Next and the only other circumstance relied upon is about the tendering of Rs. 5000, which was made on 2.3.1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case the only other payment made by the plaintiff was Rs.5000 at the time of execution of the agreement of sale. Thus, the total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but it has to be proved so. It is not in dispute that except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of a plaintiff coming in the witness box by itself may not be a factor to conclude that he was not ready and willing in a given case as erroneously concluded by the High Court."

In Veerayee Ammal vs. Seeni Ammal reported in (2002) 1 SCC 134 the law is stated in the following terms: "11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal Rani (1993) 1 SCC 519 held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.

In K. S. Vidyanadam v. Vairavan (1997) 3 SCC 1 this Court held : "Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."

In Lourdu Mari David and Ors. vs. Louis Chinnaya Arogiaswamy and Ors. reported in (1996) 5 SCC 589 this Court observed: "2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."

In Lalit Kumar Jain and Anr. vs. Jaipur Traders Corporation Pvt. Ltd. reported in (2002) 5 SCC 383 this Court observed: "9. We are of the view that the High Court failed to address itself to certain crucial factors which disentitles the plaintiff to equitable relief. The High Court reversed a well-considered judgment of the trial court without adverting to the reasoning of the trial court except in a cursory manner. In the view we are taking, it is not necessary for us to dilate on various legal issues debated before us. We shall proceed on the basis that in law the plaintiff could annul the contract of sale before the act of registration got completed and title passed to the appellants. We shall further assume that the plaintiff in fact rescinded the contract with effect from the date of expiry of the time stipulated in the fourth and final notice dated 3-7-1973. If such rescission or termination of contract is not justifiable on facts or having regard to the conduct of the plaintiff, the equitable relief under Section 27 or 31 of the Specific Relief Act has to be denied to the plaintiff, no further question arises for consideration. In such a case, the appellants' plea has to be accepted and the suit is liable to be dismissed."

Yet again in Nirmala Anand vs. Advent Corporation (P) Ltd. and Ors. reported in (2002) 8 SCC 146 this Court observed: "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance."

BENAMI PURCHASE OF PROPERTY IN WIFES NAME AND ITS CONSEQUENCE UNDER LAW 2008 SC

Binapani Paul vs Pratima Ghosh & Ors AIR 2008 SC 543, Acceptance of acknowledgement of title comes in various forms. It may be before the transaction is entered into and may be subsequent thereto. The court has to gather the intention of the concerned parties on the basis of the circumstances surrounding the transaction and not from the conduct of the parties only at a subsequent stage. 1.1. The father had no apparent motive for entering into a benami transaction. The eagerness of the father to purchase the suit property can be seen from the evidences on record. If the father intended to have a benami transaction, he would not get his wife described as daughter of somebody instead of his own wife. Such unusual step on the part of the father leads to the conclusion that he intended to purchase the suit property for the benefit of his wife. 1.2. The execution of a power of attorney may not be of importance but then the backdrop of events and the manner in which the power of attorney was drafted as well as the very fact that the father himself became an attesting witness thereto plays a significant role. If the father intended to enter into a benami transaction, his intention would have been clear and unambiguous or the same would have been explicit from the surrounding circumstances which were not. 1.3. Acceptance of acknowledgment of title may be before the transaction is entered into and may be subsequent thereto. The Court has to gather the intention of the concerned parties on the basis of the circumstances surrounding the transaction and not from the conduct of the parties only at a subsequent stage. Whether the father intended to enter into a benami transaction in the name of his wife, either surrounding circumstances leading to the inference that he had no such intention must be gathered from the totality of the circumstances both preceding and subsequent to the transaction in question or if the intention of the person providing for the fund for purchasing the property has a major role to play, how it was given also assumes some significance. On evidence on record, the suit property was mutated in her name. When a mutation takes place with the knowledge of the husband, although not conclusive, would provide for a link in the chain. 1.4. The true character of a transaction is governed by the intention of the person who contributed the purchase money and the question as to what his intention was has to be decided by four factors viz. surrounding circumstances, relationship of the parties, motives governing their action in bringing about the transaction and their subsequent conduct. All he four factors have to be considered cumulatively. The primary motive of the transaction was security for the wife and seven minor daughters as they were not protected by the law as then prevailing. The legal position obtaining at the relevant time may be considered to be a relevant factor for proving peculiar circumstances existing and the conduct of the father is demonstrated by his having signed the registered power of attorney. 1.4. The fact that the son allowed the order of mutation to attain finality would be a pointer to suggest that despite such bitter relationship between the parties, he accepted the same more so, when mutation of one's name confers upon him a variety of rights and obligations. Respondent no. 1 did not examine herself as a witness. An adverse inference should be drawn against her. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a fortiori the title of other co-sharers must be held to have been accepted. The son could not have turned around and challenged the title of the appellant and other respondents. 1.5. The suit property was purchased before the Hindu Women's Right to Property Act, 1937 came into force. Hence the Act has no application to the present case. 1.6. The Dayabagha School of Hindu law does not prohibit gift of immoveable property in favour of his wife by her husband. The same has nothing to do with the benami transaction of the property and to determine the nature of the transaction. Burden of proof as regards the benami nature of transaction was also on the respondent. Court in Valliammal (D) By LRS. v. Subramaniam and Others [(2004) 7 SCC 233] wherein a Division Bench of this Court held: "13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.

WHEN CONCOCTED REASONS ARE ASSIGNED AND WHEN THERE IS NEGLIGENCE IN PROSECUTING THE CASE - DELAY CANNOT BE CONDONED 2012 SC

READ FULL JUDGMENT
Justice G.S. Singhvi, and Justice Sudhansu Jyoti Mukhopadhaya in a non-reportable judgment of Maniben Devraj Shah vs Mun.Corp.Of Br.Mumbai Decided on 9 April, 2012 held that "What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression b sufficient causeb would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. The expression b sufficient causeb used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.

QUOTED CITATIONS

In Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition: In construing Section 5 (of the Limitation Act), it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree- holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.

Collector, Land Acquisition, Anantnag v. Mst.Katiji (1987) 2 SCC 107 this Court made a significant departure from the earlier judgments and observed: The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 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 b 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 a 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 a 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 hour's delay, every second's 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 other 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 of 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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the state which was seeking the condonationand not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the state is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note- making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression sufficient cause. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even- handed justice on merits in preference to the approach which scuttles a decision on merits.


In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court went a step further and made the following observations: It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.

In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.

In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106, the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.

In State of Nagaland v. Lipok AO ((2005) 3 SCC 752), the Court referred to several precedents on the subject and observed that the proof of sufficient cause is a condition precedent for exercise of discretion vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The Court also took cognizance of the usual bureaucratic delays which takes place in the functioning of the State and its agencies/instrumentalities and observed: Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal.

NEGLIGENCE, INADVERTENCE OR UNINTENTIONAL ACTS WOULD NOT CULMINATE INTO THE CASE OF DOUBTFUL INTEGRITY 2012 SC

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Justice B.S. Chauhan, and Justice Jagdish Singh Khehar of the Supreme court of India in the case of Vijay Singh vs State Of U.P.& Ors. Decided on 13 April, 2012 held as follows "The present case shows dealing with the most serious issues without any seriousness and sincerity. Integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness rectitude, sinlessness and sincerity. The charge of negligence, inadvertence or unintentional acts would not culminate into the case of doubtful integrity. ........Undoubtedly, in a civilized society governed by rule of law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in Criminal Jurisprudence to this effect is prescribed in legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law. In S. Khushboo v. Kanniammal & Anr., AIR 2010 SC 3196, this Court has held that a person cannot be tried for an alleged offence unless the Legislature has made it punishable by law and it falls within the offence as defined under Sections 40, 41 and 42 of the Indian Penal Code, 1860, Section 2(n) of Code of Criminal Procedure 1973, or Section 3(38) of the General Clauses Act, 1897. The same analogy can be drawn in the instant case though the matter is not criminal in nature."

LIABILITY OF INSURANCE COMPANY TOWARDS THIRD PARTY WHEN CHEQUE OF INSURED IS BOUNCED 2012 SC

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Justice R.M. Lodha and Justice H.L. Gokhale of Supreme court of India in the case of United India Insurance Co.Ltd. vs Laxmamma & Ors. Decided on 17 April, 2012 it has been held that "Where the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M.V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In other words, where the policy of insurance is issued by an authorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonored and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance companyb s liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof."


PERMITTING HIGH RAISE COMMERCIAL BUILDING IN RESIDENTIAL ZONE IS AGAINST PUBLIC SAFETY 2001 SC

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Justice V.N. Khare & Justice K.G. Balakrishnan in the case before Supreme Court in V.M. Kurian v. State of Kerala and Ors., reported in AIR 2001 SC 1401, wherein it is held that in the case of grant of permission for construction for high-rise building without compliance of technical clearance is a serious lapse. Where the public safety is involved, the lapses cannot be condoned.

ADDITIONAL CITATIONS IN THIS REGARD COLLECTED FROM VARIOUS SOURCES

In Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733 AIR 2005 SC 1, the Supreme Court emphasised the need of planned development of the cities in the following words: In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed there under. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified........................Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/ apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorised constructions, but who failed in doing so either by negligence or by connivance. READ MORE


In Rajender Singh v. State of Haryana 2005 (8) SCJ 630 : (2005) 9 SCC 1, the Supreme Court interpreted the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 and approved the action taken by the concerned authorities for demolition of illegal constructions. In the course of judgment, the Supreme Court observed as under: The Act seeks to achieve the object of leaving clear areas adjacent to scheduled roads intended for swift and safe moving of vehicular traffic. Any attempt to defeat that object by putting constructions of dhabas, residential or industrial buildings against the terms of the Development Act, would tend to affect public safety and endanger lives and property and courts must discourage such attempts. Lethargy or studied indifference of officials to act promptly cannot be made use of to thwart public interest. It is, therefore, not just or proper for courts to entertain pleas of technical nature which would tend to defeat the object of the Act.

In M.C. Mehta v. Union of India AIR 2006 SC 1325 . the Supreme Court emphasized the need of strict adherence to the Master Plan prepared by the experts after taking into account various aspects like healthy living, environment, lung space need, land use intensity, areas where the residential houses are to be built and where the commercial buildings are to be located, need of household industries, etc. and held that residential houses cannot be converted into commercial shops and residential properties cannot be used for commercial and trading activities. It says "This court has a constitutional duty to protect the fundamental rights of Indian citizens. When violators and/or abettors of the violations are those, who have been entrusted by law with a duty of protect these rights, the task becomes difficult and also requires urgent intervention by court so that the rule of law is preserved and people may not lose faith in it finding violations at the hands of supposed implementers. The problem is not of the absence of law, but of its implementation." .............. In respect of an area where the notified/specified land use is residential sanction for erection of a commercial building cannot be accorded, as is apparent from sub-section (2) of Section 336. Section 347 contains a specific prohibition for change of the use of any land or building. A bare perusal of building bye - laws shows how relevant is the user, commercial or residential, and the large impact of occupation load on various facilities including water, sanitation and drainage. ............ Neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. The provision of user may be regulatory but all the same, they are mandatory and binding. In fact, almost all the planning provisions are regulatory. The violations of the regulatory provisions on massive scale can result in plans becoming merely scraps of papers. That is the ground reality in the capital of the country. None has any right, human or fundamental, to violate the law with immunity and claim any right to use a building for a purpose other than authorized. .................... READ MORE

In S.N. Chandrasekhar v. State of Karnataka AIR 2006 SC 1204, the Supreme Court interpreted the provisions of Karnataka Town and Country Planning Act, 1961 and held that the plot earmarked for residential purpose cannot be converted into commercial by allowing the allottee to start a restaurant.READ MORE

In Dr. G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762 AIR 1996 SC 253, the Supreme Court held that allotment of land reserved for park in a residential colony for nursery school amounted to misuse of power and was liable to be quashed. Their Lordships further held that the mere fact that some construction had already been raised by the allottee was not relevant for determining the legality of the allotment. READ MORE

In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464 , AIR 1999 SC 2468 the Supreme Court considered the question whether the construction of underground shopping complex in a park is legally permissible. While declaring that the construction was illegal and upholding the direction of the High Court for demolition thereof, their Lordships of the Supreme Court laid down the following propositions: " 1) By allowing underground construction the Mahapalika has deprived itself of its obligatory duties to maintain ........... parking lots. 2) The Mahapalika is the trustee for the proper management of the park. When the true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by the Supreme Court in Span Resort case {M.C. Mehta v. Kamal Nath (Span Resort case) - (1997) 1 SCC 388}. Public trust doctrine is part of Indian law. This public trust doctrine in our country has grown from Article 21 of the Constitution. 3) Action of the Mahapalika in agreeing to the construction of an underground shopping complex in contravention of the provisions of the Act and then entering into an agreement with the builder against settled norms was wholly illegal and has been held to be so by the High Court. No doubt the Mahapalika is a continuing body and it will be estopped from changing its stand in the given case. But when the Mahapalika finds that its action was contrary to the provisions of law by which it was constituted there could certainly be no impediment in its way to change its stand. There cannot be any estoppel operating against the Mahapalika. 4) No consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles." READ MORE

WHEN A JOINT TRIAL CAN BE ORDERED BY THE COURT 2006 SC

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In State Bank of India v. Ranjan Chemicals Ltd.,(2007) 1 SCC 97, the Supreme Court indicated the circumstances wherein a joint trial could be ordered :- A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counterclaim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendances by the counsel and witnesses and the trial Judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counterclaim by the Debt Recovery Tribunal, the court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions. A joint trial is ordered when a court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the court as an inherent power.

PRINCIPLES GOVERNING PRE-MATURE SUIT AND COURT POWERS 2012 SC

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Justice P. Sathasivam, and Justice J. Chelameswar of Supreme Court of India in the case of M/S. Pushpa Sahkari Avas Samiti ... vs M/S. Gangotri Sahkari Avas Decided on 30 March, 2012. Quoted following case laws and re-framed principles governing pre-mature suit and court powers:-

In Vithalbhai Pvt. Ltd. v. Union of India, 2005 AIR SCW 1509 while dealing with the premature filing of a suit, a two-Judge Bench of Supreme Court, after referring to a number of decisions of various High Courts and Supreme Court, came to hold as follows:- The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors.

Bench ruled that the plea as regards the maintainability of the suit on the ground of its being premature should be promptly raised and it will be equally the responsibility of the Court to dispose of such a plea. Thereafter, it was observed as follows:- However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases:
(i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event;
(ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose;
(iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and
(iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency.
(v) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained. ( Samar Singh v. Kedar Nath AIR 1987 SC 1926 )

PRINCIPLES GOVERNING AMENDMENT OF PLEADINGS IN A CIVIL SUIT 2012 SC

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Justice P. Sathasivam, and Justice J. Chelameswar of Supreme Court of India in the case of Rameshkumar Agarwal vs Rajmala Exports P.Ltd.& Ors. Decided on 30 March, 2012. The court discussed the prinicples governing the Amendment of pleadings and held that "It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."

QUOTED CASE LAWS
In Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private Limited & Anr. (2008) 14 SCC 364, this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In paragraph 18, this Court held as under:- "...........It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation........."

In Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors. (2009) 10 SCC 84, this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows: "Factors to be taken into consideration while dealing with applications for amendments

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

KARNATAKA LAND LAWS