Category Archives: #patna High court

Title-Jyoti Raj Vs The State of Bihar

Decided on-22/12/2023

+CR.REV 22/2019

CORAM-HON’BLE JUSTICE RAJEEV RANJAN PRASAD

FACT

As per the facts of the case petitioner was married to opposite party no.2 on 29/11/2012 and after sometime the behaviour of the husband changed and he started committing atrocities upon petitioner. As her husband was not taking care during pregnancy period she went to her parents house and after the birth of the male child on 09/11/2013 the parents of the petitioner took her to Mumbai to live with her husband were her husband again started to assault her therefore ultimately she was compelled to leave the residence of her husband at Mumbai and in 04/06/2015 she returned to her parents house along with her male child.As the husband of the petitioner has a salary of Rs 70000 from his employment in a public sector and have income from house rent and other properties where total monthly income of Rs 150000.In the above background the petitioner filed an application under section 125 of the CRPC in the learned Family court for maintenance and the opposite party oppose the application seeking maintenance.Where the learned family court framed an issues as whether the petitioner is unable to maintain herself and opposite party who is having sufficient means us neglecting his wife.On perusal of the impunged Judgement it appears both parties have examined witnesses in support of their respective case.The marriage between the parties and birth of the son from the said wedlock are the admitted facts.on point of income the opposite party no.2 produced salary slip which shows that opposite party no.2 getting gross salary of 63,949 out of which sum of Rs 31,346 per month was being deducted against his loan and got only 32,603 as salary in his hand upon consideration of the pleadings and the evidence brought in record the learned court held that the respondent between the parties is admitted and there is an allegations that the petitioner had been ousted from the residential house of the husband without any justifiable cause and behaviour.It has also been taken note of that she is unable to maintain herself and is entitled to get maintenance.The learned Family Court took into account the salary income of the opposite party no 2 in between 60000 and 70000 Were been noticed that opposite party no.2 was Rs 10000 to the petitioner by order of this court in miscellaneous case.The Family Court has granted Rs 10000 per month maintenance i.e Re 5000 to the petitioner and Rs 5000 to her minor son.

Law Involved/Legal Provisions

The revision application has been preferred fir setting aside the order passed by the learned Pricipal Judge,Family Court Vaishali.By the impunged order the learned family court has been pleased to grant maintenance of a sum of Rs 10000 of Rs 10000 in total being Rs 5000 per month for maintenance of the petitioner and Rs 5000 per month for maintenance and education of her minor son.

Issue framed

Whether the order passed by the learned family court is maintainable?

The Court Analysis And Decision

As per the Hon’ble court after hearing both the parties observed and state that this court find that the relationship between the parties is admitted.The opposite party no.2 has not challenged the impugned judgement on any ground.As per the Hon’ble court a husband cannot be allowed to shrik his responsibility of paying maintenance to his wife,minor child,and parents by availing loans and paying EMIs thereon,which would lead to a reduction of his carry home salary.This court has been informed that during the intervention period the Opposite party no.2 has been promoted and he is now Deputy Executive Engineer and his gross salary has been Rs 1,14,564 but in order to deprive his wife from getting an adequate amount of maintenance he has taken further loan and now total sum is Rs 80,405 is being deducted his salary Were opposite party no.2 Paying Rs 43,600 as EMI on account of MSEB Emp CCsoc Mumbai.This court finds from the impugned judgement and the materials on the record that the learned Family court did not have the benefit of the judgement of the Hon’ble apex court.As this court is of the considered opinion that for the reasons stated hereinabove the impugned judgement insofar as it fixes maintenance amount of Rs 10000 only cannot be sustain the test of law.Thus thus court sets aside the impugned order as regards quantum of maintenance and remand this matter to the learned Family Court to take a fresh view of the matter on the quantum.The Learned Principal Judge Family court shall fix the quantam of maintenance afresh upon consideration of the material available on the record after giving an opportunity to both the parties to file their respective affidavits.The entire exercise shall be carried out and Judgement fixing maintenance would be delivered by the learned Principal Judge family court within a period of four months from the date of receipt/production of a copy of this order.In meantime by virtue of the order of the Hon’ble court in the Miscellaneous case the opposite party no2 shall keep paying Rs 10000 per month to the petitioner.This application is allowed.

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Written by- Prachee

2 Jan

High Court of Patna Set Aside The order Passed by the learned trial court under section 304-B of IPC as proper evidence to proof the offence

TITLE-Rajan Sah Vs The State of Bihar

Decided on-21/12/2023

+CR.APP(DB)No.1439/2023

CORAM-HON’BLE JUSTICE ASHUTOSH KUMAR AND HON’BLE JUSTICE NANI TAGIA

FACT

As per the fact the appellant without there being any evidence of any demand of dowry and cruelty has been convicted for the offences under section 304-B of the IPC.As the FIR has been lodged by the father the deceased As Appellant married to the deceased in the year 2007 and have one child.However alleged in FIR later the Appellant started demanding money as part of dowry,the non fulfillment of which demand led to mental and physical torture of the deceased.The deceased had informed on telephone that she was being subjected to cruel treatment. Were she left all decisions on her father were he family members of the Appellant who assured that they will ensure that the appellant men’s his ways and practically there was no change and cruelty was continued.on one of the date she was thrown out of the house and was not even allowed to enter the house of her sister in law.Because of such cruel treatment the deceased set herself on fire and while treated for burn injuries and died in hospital on 06/01/2011 at 4:00 PM. It has further disclosed in the FIR that first taken to sadar Hospital and later bought deceased in an injured condition to katihar Medical College and Hospital where while her treatment she died.For which case was registered for investigation for the offence under section 304-B of the IPC.Where in trial court Appellant was punishable under the aforesaid section.

Law Involved/Legal Provisions

The appellant has been convicted for the offence punishable under section 304-B of the IPC passed by the learned Addl.District and Sessions Judge for which he has been sentenced to undergo imprisonment for life and to pay fine.

ISSUE RAISED

Whether the order passed by the trial court convicted under section 304-B is valid?

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after hearing both the parties observed and state that the aforenoted statement of deceased is not on record.Neither the person who recorder FIR Not the investigator of this case have been examined.On question put to him by the court he has specifically answered that when he had gone to the hospital he had a talk with his daughter and the case which he had filed was on the basis of what his daughter had told him.After witnessing the father of the deceased make the Prosecution case highly suspicious.The opinion of the trial court that no pre judice has been caused because of non examination of the IO appears totally faulty.In it’s entirety the evidence adduced before the trial court do not prove the case against the appellant beyond all reasonable doubts.In fact the reason for the deceased having caught fire whether self propelled or at the instance of others remain unknown.The non-examination of the IO leaves the appellant highly prejudiced.The Court do not find any justification to ratify the Judgement of the trial court.The Court set aside the judgement of conviction and order of sentence referred to above and acquit the appellant of the charge levelled against him.The Appeal stands allowed.

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2 Jan

The High Court of Patna set aside the judgement and decree of the appellate court as it appears that the appellate court has failed to exercise it’s power and jurisdiction

TITLE- Shree Kishun Rai & ors Vs Ram Dulari Devi & ors

DECIDED on-22/12/2023

SA+402/2000

CORAM-HON’BLE JUSTICE KHATIM REZA

FACT

As per the facts of the case one Lalit Bhagat Had five sons who was father of the Husband of the Original plaintiff who had acquired some lands from his own income.During the lifetime of Lalit Bhagat Rai,Deorah Rai died in the year 1958,leaving behind his widow namely Pan Kuer(plaintiff) and a sib Jugal Rai (defendant no.1).All the son got ⅕th share and had started residing separately.The Plaintiff is the widow if Deorah Rai and mother of Defendant no.1 ,2 and 3 are the alleged vendees of Defendant no.1.As further case of the plaintiffs is that Deorah Rai husband if the original plaintiff was in police service and died in the year 1959,leaving behind plaintiff and his minor son,Viz., Jugal Rai (defendant no.1) and after the death of husband the plaintiff became the Karta of her family and looked after her son and carried business in the name of her husband and constructed a pucca house.As Defendant no.1 joind army service in the year 1965, but never sent a single farthing to the plaintiff,during the course of the service.Further plaintiff state that she got marriage of his son solemnized with one lailawati Devi but her son become addict to ganja,bhang and wine etc and became a man of bad character and was not taking care of the plaintiff and was issuesless and due to his bad habits,his wife Lilawati deserted him and solemnized another marriage.While she was working in her field she was objected by Defendant no.2 and 3 because her son Jugal Rai had executed a sale deed in 30/12/1974 regarding a suit land in favour of the defendant no.2 and 3.Havind Knowledgeable about the same plaintiff inquired the matter from her son Jugal Rai who denied the same and on inquiry from Registry office she became aware that a sale deed was executed which was forged and fabricated one in the manner described in the plaint.The Defendants never came in possession over the suit land nor any title accured to them in the basis of the said sale deed.Lastly the plaintiff requested to the defendants on 28/02/1984 to which they did not agree hence the necessity of the suit. Where the plaintiff has prayed for setting aside the sale deed dated 30/12/1974 executed by Defendant no.1 in favour of Defendant no 2 and 3 and for confirmation/recovery of possession over the land in suit.On Summons, Defendant no.2 and Defendant no.3 have appeared and filed joint written statement.Apart from technical objection the factum of partition amongs the sons of Lalit Bhagat Rai and the plaintiff is the wife of Deoraj Raj have been admitted by these Defendants.These defendants have denied the facts.However it is pertinent to mention that despite the summons jugal Rau has not appeared in the suit nor filed any written statement.On analysing the evidence and materials on record the learned trial court plaintiff has got no valid cause of action of the suit.Therefore the plaintiff is not entitled to any relief in the suit.

Law Involved/Legal Provisions

As this is the second Appeal filed by the plaintiffs against the Judgement and Decree on 25/07/2000 passed by the learned 1st Additional District Judge,Saran in Title Appeal no.43/1988whereby learned lower appellate court has reversed the Judgement and decree dated 28/02/1988 title suit.

Issue framed

Whether the order passed by the learned trial court is valid ?

The Court analysis and decision

As Per the Hon’ble court after hearing both the parties observed and state that the appellant court has failed to exercise it’s power and jurisdiction.The Trail Court has rightly held that the plaintiff is not entitled to recovery of possession. So far findings with regard to the case of adverse possession is concerned, the appellate court by making out a third case neither any claim of adverse possession by the plaintiff nor by the defendant assumed that when the sale deed is void and illegal,The vendees possession automatically become adverse to the plaintiff.This Finding is completely erroneous and on wrong interpretation of law.Further the suit is also barred by law of limitation and the finding given by the learned Trial Court attracting Article 59 of the Limitation Act, in the instant matter, whereby the period of limitation is three years is correct and the finding of the trail court us affirmed whereas the finding on this score by the Learned appellate Court invoking Article 65 of the Limitation Act is erroneous and perverse and therefore the judgement and decree of the appellate court us set aside.The second appeal had got merit and accordingly it is allowed.

Written by- Prachee

2 Jan

The recover of excess payment from the retired employee after a long time is held to be impermissible in law – High Court of Patna

TITLE-Nirmal Kumar Vs The State of Bihar

DECIDED on-22/12/2023

+CWJC No.15555/2022

CORAM-HON’BLE JUSTICE HARISH KUMAR

FACT

As per the facts of the case petitioner was appointed in the year 1988 as constable and after rendering more than 33 year of service he got promotion in the year 2022 in the post of Havildar,Ara Police Line,Bhojpur.In course of his service has also passed Hindi Noting and Drafting Examination in the year 2010 but the benifit was denied to him and all on a sudden vide Bhojpur District dated 27/09/2021 his salary has been revised w.e.f 01/01/2006 and alleged excess amount of Rs 5,71,203/- has been recovered from the gratuity amount in a most arbitrary manner.Where the learned counsel for petitioner states that action of recovery being illegal and wholly without jurisdiction.Whereas on the other hand learned Councel for state submits that the department came to know that wrong fixation of pay has been made, necessary action has been taken in accordance with law and direction has been issued to recover the excess amount.whilr directing the issues an emphasis has been made that at the time of fixation undertaking was given by the petitioner that any amount found excess to his entitlement,the same shall be recovered.

Law Involved/ Legal Provisions

As the present writ petition filed under Article 226 of the Constitution of India seeking a direction upon the respondent authorities to ensure payment of all his retiral dues as well as benefit of ACP and on the basis thereof to enhance the pension and further sought a direction not to recover Rs 5,71,203 from the gratuity amount of the petitioner.

Issue Raised

Whether the order directing for recovery if excess amount of RS 5,71,203 from the gratuity amount of the petitioner is sustainable.

The Court analysis and observations

As per the Hon’ble court after hearing both the parties observed and state that as per the stand of the state the petitioner has been allowed higher pay with effect from 01/01/2006 and the similar error gas occurred subsequently at the time of revision of pay scale which is said to have been detected in course of varification at the time of fubal fixation if his retrail benifits admissible dues in the year 2001.It is not the case of the respondents that the petitioner was responsible or instrumental to the decision of the alleged enhanced pay fixation and in fact the same was done by the Department itself.As the officer furnished an undertaking while opting for teg revised pay scale is bound by the undertaking would not be applicable in the facts of the present case since respondents have not come out with any such undertaking furnished by the petitioner while opting for the revised pay scale.The fixation of pay was done some time in the year 2009 and 2013 itself and the petitioner had never been placed on notice that any payment found to have been made in excess would be recovered.Now any such kind of notice or undertaking on or after the retirement of the employee would not come to rescue of the employer to superannuation of the employee.The court is in agreement with the aforenoted proposition of law.However the case in hand is quite distinguishable and thus the reliance of the state is wholly misconceived,Gone through the material and taking note of the settled legal proposition,this court finds that the case of the petitioner falls within the situation where the recovery if excess payment from the retired employee after such a long time us held ti be impermissible in law.The present application stands allowed.The impugned order directing for recovery of excess amount of RS 5,71,203 from the gratuity amount of teg petitioner held to be not sustainable and the respondent us directed to restore the amount.Respondents are further directed to ensure payment Of differential amount after revision and also accord the benefit of ACP and MACP in accordance with law.

Written by- Prachee

28 Dec

High Court of Patna state that The Construction of canal which is of public and national importance, cannot be stopped by this Hon’ble Court on frivolous ground in eye of law.

Title-Ramji Singh & ors Vs The State of Bihar

Decided on-19/12/2023

+CWJC No.13459/2021

CORAM-HON’BLE JUSTICE PRABHAT KUMAR SINGH

FACT

As per the fact the land in question was acquired by the land Acquisition Department, Government of Bihar under the land Acquisition Project -1974 but till now have not taken physical possession of the acquired land nor any compensation has been paid in lieu of acquired land to the petitioner and it is settled law that if physical possession has not been taken or the compensation is not paid them the acquisition proceeding is deemed to have lapsed.It is further submitted that action of respondents in construction of canal under Tirhut Gandak Project is illegal and hence end of justice the respondent are required to be restrained from the construction of the canal over the land of petitioners.The petitioners have further state that even assuming lands were acquired and possession was taken by the state Government/Water Resources Departments,Bihar and it shall be assumed that the state has waived their all rights as they admitted the title and possession of the petitioner by conducting operation of consolidation Act on the said land by accepting rent,issuing rent receipt,establishing the relationship of landlord and tenants between the state Government and the petitioner.Accordingly if the respondents still desire to have the said land acquired fresh Acquisition proceedings as mandated under section 24 of the New Act,should be intimidated.

LAW INVOLVED/LEGAL PROVISIONS

As the present writ application has been filed by the petitioner for restraining the respondents from the construction work of canal over the land of petitioners in the light of Land Acquisition Project of 1974.

ISSUE RAISED

Whether land acquired in the year 1974 and compensation duly paid but merely on the ground of petitioner are in possession of the land.

THE COURT ANALYSIS AND DECISION

As after hearing both the parties Hon’ble court observed and state that It is not in dispute that the land in question was acquired in the year 1974 and compensation was duly paid merely on the ground that petitioners are in possession of the land in question the construction of the canal which is of public and national importance,cannot be stopped by this Hon’ble court on frivolous grounds in the eye of law.As it is not proper on the part of the petitioners to challenge the acquisition proceeding or claim possession in the ground of adverse possession.Transfer of lands were taken from them in 1974 and after lapse of 50 years of acquisition, creating hurdles in an important project are not fit and proper Accordingly the writ application is dismissed.

Written by- Prachee