CUSTOM SEARCH

OMISSION OF A SINGLE MATERIAL FACT LEADS TO AN INCOMPLETE CAUSE OF ACTION 1969 SC

SAMANT N.BALKRISHNA AND ANOTHER V GEORGE FERNANDEZ AND OTHERS 1969 (3) SCC 238 with regard to showing in the election petition the concise statement of material facts with reference to Section 83 of the Act, 1951, wherein it was held thus: “The Section is mandatory and requires first a concise statement of material facts and then requires the fully possible particulars. What is the the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.”

SECTION 151 OF THE CODE CANNOT BE ROUTINELY INVOKED FOR REOPENING EVIDENCE OR RECALLING WITNESSES - SCOPE OF 151 - SC 2011

K.K. Velusamy vs N. Palaanisamy 2011 (4 ) SCR 31 = 2011 (11 ) SCC 275 We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899;Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.


PROCEDURAL DEFECTS WHICH DO NOT GO TO THE ROOT OF THE MATTER SHOULD NOT BE PERMITTED TO DEFEAT A JUST CAUSE

Supreme Court in United Bank of India v. Naresh Kumar and Others (AIR 1997 SC 3) held that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the court under the Code of Civil Procedure to ensure that injustice is not done to any parties who has a just cause. The original of the power of attorney is subsequently produced in this court and according to me the contention on the question of maintainability - that the suit is not maintainable due to the non competence of the signatory to the plaint cannot any longer survive.

COURTS INHERENT POWER INCLUDES POWER TO RECTIFY ITS MISTAKES

Jagannatha Shetty, J. in State of Karnataka v. Balekal Krishna Bhat ((1975) 2 Kant LJ 489) in which he affirmed an order made by the trial Court exercising the inherent Powers in setting aside the order of dismissal of a reference made under Section 18 of the Land Acquisition Act: "If the Court commits a mistake thereby causing injustice to any party before it, the Court would be under legal obligation to correct such mistake so as to render justice to the party. The power conferred by Section 151 is meant for that purpose."


Kariyanna vs Isthuri Subbaiahsetty And Ors. AIR 1981 Kant 234, 1981 (1) KarLJ 66 A Judge owes it to himself and the litigant public to correct his own mistake when once the same is brought to his notice and he will be failing in his duty if he does not do so and sticks to his previous order, as if he is infallible. A Judge should approach the same in all humility and rectify the mistake if he is convinced of the same.

DOCTRINE OF ESTOPPEL

In Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, (2011) 10 SCC 420, this Court considered a large number of judgments on the issue of estoppels and held as under: “A party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience….. ……….The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.”

CLEAN HANDS OF LITIGANT

Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236).


In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

The truth should be the guiding star in the entire judicial process. “Every trial is a voyage of discovery in which truth is the quest”. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar Singh v. Union of India, (2011) 7 SCC 69).

In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), (2012) 5 SCC 370), this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 held: “False claims and defences are really serious problems with real estate litigation, predominantly because of ever- escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.”


NO APPLICATION CAN BE FILED AFTER THE FINAL ARGUMENTS HAVE BEEN HEARD AND THE MATTER IS POSTED FOR JUDGMENT

Rabiya Bi Kassim M. vs The Country Wide Consumer ... on 5 April, 2004
Equivalent citations: ILR 2004 KAR 2215, 2004 (4) KarLJ 189
Author: N Jain
Bench: N Jain, V Sabhahit
In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001. In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.


WHAT IS MATERIAL FACTS IN A PLEADING

Sopan Sukhdeo Sable & ors vs. Assistant Charity Commissioner - (2004) 3 SCC 137 There is distinction between 'material facts' and 'particulars'. The words 'material facts' show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. …………. Court in Samant N. Balkrishna v. George Fernandez (1969 (3) SCC 238), the distinction between "material facts" and "particulars" was brought out in the following terms:
The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.

JUDICIAL PROCEEDINGS CANNOT BE USED TO PROTECT OR TO PERPETUATE A WRONG

Shiv Kumar Chadha v. MCD (1993 (3) SCC 161) wherein it was observed that injunction is discretionary and that: "Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".


Mahadeo Savlaram Sheike v. Pune Municipal Corporation (1995 (3) SCC 33) "It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession."

TRANSFER OF PROPERTY ACT IS NOT AFFECTED BY PERSONAL LAW

RADHAKISHAN LAXMINARAYAN TOSHNIWAL vs. SHRIDHAR RAMCHANDRA ALSHI AND OTHERS reported in AIR 1960 SC 1368, wherein it is held that the transfer of property, where the Transfer of Property Act applies, has to be under the provisions of the said Act only; the Mohammedan Law of transfer of property cannot override the statutory law. It has expressed the considered view that wherever the Transfer of Property Act is in force, the Mohammedan Law or any other personal law is inapplicable to the transfer of properties, this judgment is followed subsequently by the Hon'ble Apex Court in the case of KUMAR GONSUSAB vs. MOHAMMED MIYAN URF BABAN reported in AIR (SCW) - 2008-0-6311.






KARNATAKA LAND LAWS