7/31/2019 mlj193

1/15

Vol-III January, 2008

Part-1

IMPORTANT CASE LAWSIMPORTANT CASE LAWS

Compiled by

Tamil Nadu State Judicial AcademyChennai 28

7/31/2019 mlj193

2/15

SUPREME COURT CITATIONSSUPREME COURT CITATIONS

(2008) 1 MLJ 45 (SC)Ram Prakash Gupta and Others Vs. Rajiv Kumar Gupta and Others

(A) *****

(B) Code of Civil Procedure (5 of 1908), Order 7, Rule 11 (d)

Rejection of plaint, under Order 7, Rule 12 Mandatory requirements, under

Limitation Act (36 of 1963), Article 59 Application for rejection of plaint on ground

limitation, allowed Respondents' further filing 2 suits, obtaining decree fraudulently

Plaintiff handicapped person On coming to know of said decree, taking steps at earliest,

filing suit for declaration As per Article 59, Limitation Act, suit to be filed within 3

years of date of knowledge Knowledge mentioned in plaint not incomplete or

inadequate Both lower Courts failed to advert to relevant averments in plaint Order

rejecting plaint set aside.

RATIONES DECIDENDI

I. Before passing an order in an application for rejection ofplaint under Order 7, Rule 11 (d), Code of Civil Procedure,it is but proper to verify the entire plaint averments.

II. The plea of limitation taken after cross examination of theparty cannot form the basis for a contention for rejectionof plaint.

(2008) 1 MLJ 193 (SC)Asokan Vs. Lakshmikutty and Others

Transfer of Property Act (4 of 1882), Sections 122 and 123 Indian Evidence

Act (1 of 1872), Sections 91 and 92 Deed of gift Suit for declaration filed by

donee/appellant Trial Court decreed said suit opining that valid gift could not have been

rescinded by mere fact that donors feeling towards donee underwent a change

However, it was reversed by First Appellate Court and High Court opining that deeds in

1

7/31/2019 mlj193

3/15

question not accepted by donee/appellant as there had been no overt act of possession on

part of appellant Appeal Deeds of gift not onerous in nature Factum of handing over

of possession of properties which were subject matter of gift, stated in deeds of gift

themselves Averment made in deed of gift in regard to handing over of possession is

sufficient proof of acceptance thereof by donee It is not necessary to prove any overt

act of possession on part of appellant since express acceptance is not necessary

Judgments of High Court and as also First Appellate Court set aside and that of trial

Court restored Appeal allowed.

RATIONES DECIDENDI

I. While determining the question as to whether delivery of possession

would constitute acceptance of a gift or not, the relationship betweenthe parties plays an important role. Even a silence may sometimeindicate acceptance when the donee was aware of the recitals containedin deed of gift and it is not necessary to prove any overt act in respectthereof since an express acceptance is not necessary for completingthe transaction of gift.

II. When the deed of gift catergorically state that the propety had beenhanded over to the donee and he had accepted the same, it issufficient proof of acceptance thereof by the donee. Even assumingthat the legal presumption raised in a case of this nature is arebuttable one, the onus should be on the donor and not on the donee.

III. Once a gift is complete, the same cannot be rescinded. For any reasonwhatsoever, the subsequent conduct of a donee cannot be a ground forrecission of a valid gift.

(2008) 1 MLJ 155 (SC)Divisional Manager, Aravali Golf Club and Another Vs.Chander Hass

and Another

(A) *****

(B) Seperation of Powers Limits of powers of judiciary There is

broad separation of powers under Constitution Each organ of State must not encroach

into each other's domains In name of judicial activism Judges could not cross there

limits and try to take over functions which belong to another organ of State

Adjudication must be done within system of historically validated restraints and

2

7/31/2019 mlj193

4/15

conscious minimization of Judges' preferences Judges could not create law and seek to

enforce it.

(c) Judicial Restraint Only Judiciary has power to declare limits of

jurisdiction of all three organs of State Such power should be exercised by judiciary

with utmost self-restraint Judicial restraint tends to protect independence of judiciary

Judiciary should confine itself to its proper sphere realizing that in democracy many

matters and controversies best resolved in non-judicial setting.

RATIO DECIDENDI

The Court cannot direct the creation of posts. Creation and sanctionof posts is a prerogative of the executive or legislative authoritiesand the Court cannot arrogate to itself this purely executive or

legislative function, and direct creation of posts in any organization.

(2008) 1 MLJ 144 (SC)Prabha Arora and Another Vs. Brij Mohini Anand and Others

U.P. Urban Buildings ( Regulation of Letting Rent and Eviction) Act, 1972,

Section 21 (1) (a) Eviction petition Subsequent events Changed circumstances

during pendency of the petition Must be taken into consideration Landlord filing

eviction petition for running tuition classes Petition rejected During pendency of

appeal trust was created over the property involved in the eviction petition Need

mentioned in the petition disappears Eviction petition has to be rejected.

RATIO DECIDENDI

Where in an eviction petition possession is sought for by thelandlord for personal requirements, the said requirement must

not only exist on the date of the filing of the petition but mustalso subsist till the final decree for an order of eviction is made.If in the mean time events crop up which would show that thelandlord's requirement no longer subsists then the action must fail.

3

7/31/2019 mlj193

5/15

7/31/2019 mlj193

6/15

2008 (1) CTC 74Mohannakumaran Nair Vs. Vijayakumaran Nair

Code of Civil Procedure, 1908 ( 5 of 1908) , Section 20 Parties were not

residing within local limits of jurisdiction of Court when transaction taken place

Plaintiff was residing in Saudi Arabia Material date for purpose of invoking Section 20

of Code of Civil Procedure is one of institution of Suit and not the subsequent fact that

Defendant started residing in Kerala permanently and said fact would not confer

territorial jurisdiction.

2008 (1) CTC 161Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and

others

Code of Civil Procedure, 1908 (5 of 1908), Section 152 Section 152

empowers Court to correct its own error in judgment, decree or order from any accidental

slip or omission It is general inherent power of Court Court has to see that records are

true and present correct state of affairs Court cannot, exercising powers under Section

152, review its judgments Error in decree may be corrected both under provisions of

Sections 151 and 152 Accidental slip or omission can be on part of Court or on part of

its ministerial officers or traceable to conduct of parties themselves Error in description

of property in Suit which had been decreed could be corrected and decree be amended

under provisions of Section 152 particularly when statements contained in body of plaint

sufficiently described suit lands Amendment order by Trial Court and upheld by High

Court confirmed.

2008 (1) CTC 173Mahabir Singh Vs. Subhash and others

Code of Civil Procedure, 1908 ( 5 of 1908), Order 9, Rule 13 Limitation Act,

1963 (36 of 1963), Section 3 & Article 123 Defendant seeking to set aside ex-parte

decree to establish that either summons was not served on him or he had sufficient cause

5

7/31/2019 mlj193

7/15

for remaining absent on date fixed for hearing Suit ex-parte When defendant shown to

have knowledge of decree prior to filing of Application for setting aside same, period of

limitation would be reckoned from that day and Application filed after one and a half

years after he came to know about passing of ex-parte decree is barred by limitation No

Court can entertain any Application or Suit if same has been filed after expiry of period

of limitation.

HIGH COURT CITATIONSHIGH COURT CITATIONS

(2008) 1 MLJ 122Manickavasagam Vs. Ammayappa Pillai and Another

(A) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 Restoration

petition dismissed On ground application for condonation of delay not filed therewith

When petition presented, no objection by Registry regarding limitation Registry

numbering restoration petition Fault of Registry, not of appellant Progmatic approach

necessary when dealing with restoration petition filed after delay Should not be

dismissed on mere technicalities.

(B) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 Restoration

petition dismissed on ground counsel for appellant reported no instructions - Ex-parte

order Held, counsel to inform client by registered post of his inability to appeal Only

on receipt of postal acknowledgement, counsel to report no instructions to Court.

RATIONES DECIDENDI

I. Restoration petitions filed after delay should be dealt with a

pragmatic approach. Such petitions should not be dismissedon ground of mere technicalities.

II. It is the counsel's duty to inform his client by registered post,of his inability to appear; only on receipt of postal acknowledgementthereto can he report no instructions to the Court.

6

7/31/2019 mlj193

8/15

(2008) 1 MLJ 186Balasubramanian Vs. Shanthi

(A) Pondicherry Buildings ( Lease and Rent Control) Act (1969), Sections 10

(2) (i) and 10 (3) (a) (iii) Eviction Application for eviction of respondent- tenant on

ground of personal use and occupation Impugned order dismissing same Revision

Petitioner physically handicapped and he was also carrying on business in rented

premises License obtained by landlord to carry on business in premises in question -

Requirement of premises in question for personal use and occupation justified As such,

impugned order set aside Eviction order passed Revision petition allowed.

RATIO DECIDENDI

Once the license has been issued by the Corporation to the landlordto carry on his business in the premises in question, there cannot beany legal impediment for ordering eviction on the ground of personaluse and occupation particularly when the landlord is a physicallyhandicapped and he is also carrying on business in the rented premises.

2008 (1) CTC 295Vijayan @ Jayapandian and others Vs. State, rep by Inspector of Police,Chidambaram Town Police Station, Chidambaram, Cuddalore District

Evidence Act, 1872 (1 of 1872), Section 30 Confession of co-accused

Value of evidence of Confession can be considered against other accused only if such

co-accused has been tried jointly for same offence along with other accused Decision of

Apex Court in Suresh Budharmal Kalani Vs. State of Maharashtra, AIR 1998 SC 3258

relied on.

2008 (1) CTC 308Vincent Lourdhenathan Dominique and another Vs. Josephine Syla

Dominique

Registration Act, 1908 (16 of 1908), Section 17 Registration of family

arrangement and guidelines regarding admissibility of unregistered family arrangement

Family arrangement that purports to create, declare, assign, limit and extinguish right,

7

7/31/2019 mlj193

9/15

title and interest over immovable properties and therefore document is requited to be

properly stamped and duly registered Family arrangement which records at later point

of time of partition of properties that had already taken place and given effect to need not

be registered contents of documents alone should be looked into and nomenclature is

not guiding aspect to make such determination Family arrangement which allotted

properties and did not record earlier partition required registration and unregistered

document cannot be admitted in evidence Tests laid down in A.C. Lakshmipathy Vs.

A.M. Chakrapani Reddiar, 2001 (1) CTC 112 followed.

(2008) 1 MLJ 349

Sheik Allaudin and Others Vs. Annibal Thamilarasi Jesintha

Code of Civil Procedure ( 5 of 1908), Section 50 Legal representatives

A person living with the tenant or having continuous association with him as a member

of tenant's family until his death can be treated as his legal representative for proper

conduct of the proceeding They can be impleaded as necessary parties in execution

proceedings for eviction Decision in Balasubramanya Gupta Vs. Saraswathiammal and

Others 2005-2-L.W.450 followed Revision dismissed.

RATIO DECIDENDI

Person having continuous association with the deceased tenant asa member of his family can be treated as his legal representative

for the purpose of impleading them in eviction proceedings.

(2008) 1 MLJ 354Sakunthala (Ms.) Vs. Anandarajan and Another

Code of Civil Procedure ( 5 of 1908), Order 3 Rule 2 Authorised

agent cannot be permitted to give evidence where the evidence is based on personal

knowledge of the principal Power agent appointed in the year 2003 cannot be expected

to know the normal course of business which happened in 1994.

8

7/31/2019 mlj193

10/15

7/31/2019 mlj193

11/15

RATIONES DECIDENDI

I. An evidence of an accomplice need not necessarily be rejected,that the evidence requires corroboration in material particularsas well as the corroboration of the evidence connecting or tend toconnect the accused with the crime, that such accomplice witnessis reliable.

II. *****

(2008) 1 MLJ (Crl) 50Seetharaman and Others Vs. State rep. by Inspector of Police, AriyalurPolice Station

(A) *****

(B) *****

(c) Indian Evidence Act (1 of 1872), Section 25 & 27 Confession

before police, in the presence of VAO Leading to recovery Materials on record reveal

the arrest of the accused one day prior to the date of the arrest shown by the prosecution

Identifying the place of burial of the body of the deceased Recovery of properties of the

deceased not identified No probative value with arrest and recovery Conviction set

aside.

RATIONES DECIDENDI

I. To rely upon the Test Identification Parade, the persons requiredto identify an accused should have had no opportunity of seeinghim before the commission of the crime and before identification.

II. Once the fact has been discovered, Section 27 of the Evidence Act

1872 cannot again be made use of to rediscover the discovered fact.It would be a total misuse, even abuse of the provisions of Section 27.

(2008) 1 MLJ (Crl) 276Dr. R. Krishnamurthy, Editor and Partner, Dinamalar Tamil DailyNewspaper, Chennai-2 and Another Vs. Sun TV Network Limited,rep. by its Authorized Person, L. Jotheeswaran, Teynampet,Ch-18.

Indian Penal Code (45 of 1860), Sections 499 and 500 Code of Criminal

Procedure, 1973 (2 of 1974), Section 482 Complaint for defamation against Editor and

7/31/2019 mlj193

12/15

10

Publisher of the daily news paper- Quash petition filed Complainant is a company

Whether the company has reputation apart from its property or trade Language of

Explanation 2 of Section 499 I.P.C. - Wide interpretation permissible Company is the

aggrieved person Juristic entry Complaint filed by a person's authorised

representative maintainable Merits of the allegations in the complaint cannot be

adjudicated in the quash proceedings Petition dismissed.

RATIO DECIDENDI

Complaint for defamation is maintainable at the instance of acompany, though a judicial entity, represented by itsauthorised representative for the loss of property and trade,

in view of explanation(2) to Section 499 Indian Penal Code,1860.

(2008) 1 MLJ (Crl) 193Vijayan @ Jayapandian and Others Vs. State rep. by Inspector of Police,Chidambaram Town Police Station, Chidambaram, Cuddalore District

(A) *****

(B) Indian Evidence Act (1 of 1872), Section 30 Confession of the

absconding accused Inadmissible against a co-accused unless they are jointly tried

Decision in Suresh Budharmal Kalani Vs. State of Maharashtra AIR 1998 SC 3258

followed Death sentence set aside Reference answered in favour of the accused

Appeals allowed.

RATIO DECIDENDI

The statement under Section 162 and 164 of the Code of CriminalProcedure, 1973 can be used either to corroborate or to contradictthe earlier version. Confession of a co-accused can be used against

other accused only if they are tried jointly for the same offence.

(2008) 1 MLJ (Crl) 255A. Ganesan Vs. Dr. S. Mahalingam

Code of Criminal Procedure 1973 (2 of 1974), Section 378 (3)

Limitation Act (36 of 1963), Section 5 Dishonour of cheque Appeal against acquittal

filed without special leave petition returned and represented with special leave petition

Leave granted Appeal admitted Accused filing a petition to recall the order granting

7/31/2019 mlj193

13/15

11

leave, allowed because thespecial leave petition filed after the period of limitation for

filing the appeal Liberty given Petition to condone the delay of 15 days Calculation

of delay disputed Sufficient cause shown Limitation Act should be construed liberally

Substantial justice is to be done Delay condoned Petition allowed.

RATIO DECIDENDI

Limitation Act should be liberally construed to ensure that substantialjustice is done and length of delay is not relevant in the absence of anyinaction or lack of bonafide.

(2008) 1 MLJ (Crl) 251

Irulayee and Others Vs. State rep. by sub-Inspector of Police, AllWomen Police Station, Virudhunagar District

Indian Penal Code (45 of 1860), Sections 294(b) and 452 F.I.R. filed

only after seven days of occurrence The petitioners entered into the house of de-facto

complainant and abused her Even according to prosecution the occurrence taken place

inside the house of the defacto complainant Hence Section 294(b) of I.P.C. not attracted

Criminal tresspass alone cannot be maintained Proceedings before Judicial Magistrate

quashed Petition allowed.

RATIO RECIDENDI

In order to bring the offence under Section 294(b) of Indian PenalCode, 1860 the occurrence must have taken place in a public placeor near public place. When the charge under Section 294 (b)is not made out then the offence of criminal tresspass alonecannot be maintained, in the absence of any of the offencealong with trespass to make out as a criminal house-trespass.

(2008) 1 MLJ (Crl) 271Saravannan Vs. State rep. by Inspector of Police, Uthangaral PoliceStation , Dharmapuri District

Indian Penal Code (45 of 1860), Section 304 (ii) Conviction under

Section 304 (ii) Indian Penal Code Appeal filed by appellant P1 to P3 Ocular

12

7/31/2019 mlj193

14/15

witnesses Turned hostile P.W.4 and P.W.9 inconsistent statements No credit can be

given to the evidences given by P.W. 4 and P.W. 9 Judgment set aside Accused

acquitted.

RATIO DECIDENDI

When there is no valid reasoning given for non-examination of theinvestigation officer, the seizure of material objects cannot be takento be proved and the mere fact that the material objects wereseized from the place of occurrence would not advance argumentany further so as to warrant conviction under Section 304 (ii)Indian Penal Code, 1860.

2008 (1) CTC 369S. Thirugnanasambandam Vs. Kaliyaperumal Chettiar

Code of Civil Procedure, 1908 (5 or 1908), Order 8, Rule 6-A to 6-G When

Counter-claim has to be filed? - Counter-claim by the Defendant can be entertained at

any stage to avoid multiplicity of judicial proceedings Discretion is given to Court to

allow filing of additional written statement or counter-claim Court has to only consider

whether it is necessary for determining real question in controversy between parties and

that claim is not hit by law of limitation or exceeding pecuniary jurisdiction of the Court.

2008 (1) CTC 50The New India Assurance Co. Ltd., Catholic Centre, 913, Main Road,Koilpatti Vs. P. Chelladurai and Others

Motor Vehicles Act, 1988 (59 of 1988), Section 149 (2) (a) (ii) and (3)

Violation of Policy Condition Liability of Insurance Company Driver of Vehicle was

a minor boy of 15 years Minority admitted before Criminal Court and fine paid

Insurance Company need not prove that owner of vehicle consciously violated terms of

Policy by allowing a minor without licence to drive vehicle when driver was a minor

question of Insurance Company proving that owner of vehicle consciously violated

policy condition would not arise Insurance Company exonerated from liability

Claimant already withdrew 50% compensation deposited by Insurance Company

13

7/31/2019 mlj193

15/15

Claimant to recover balance from insured Insurance Company also permitted to recover

50% withdrawn by claimant from insured.

2008 (1) CTC 97J. Naval Kishore Vs. D.Swarna Bhadran

Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule 27 - Receipt of

Additional Documents at Appellate Stage Certified copy of family arrangement sought

to be filed in Appeal as only photo copy had been filed during trial and person who

signed such document did not examine himself as witness in trial and original though

available during trial was not filed Glaring discrepancies found in two documents

Application for additional documents rejected.

2008 (1) CTC 97J. Naval Kishore Vs. D.Swarna Bhadran

Indian Evidence Act, 1872 (1 of 1872), Section 67 Secondary evidence

could be looked into only when non-production of original is satisfactorily explained

Possibility of interpolation in photo copy cannot be ruled out Photo copy of family

arrangement could not be entertained as no reason for not filing Original family

arrangement was given and original document was very much in existence.

*****

14