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Appellate Court Upholds Determination of Coparcener Rights in Ancestral Property Dispute: Bombay HC

Title: Sau. Ushabai Vs Smt. Mainabai and ORS.

Citation: SECOND APPEAL NO. 326/2015

Coram: Justice SMT. M.S. JAWALKAR

Date: 22/12/23

Facts

The case involves the plaintiff, who filed R.C.S. No.1794/1999 for the specific performance of an agreement of sale dated 24/09/1998. The decree in her favor was issued on 18/10/2001, leading to the execution of a sale deed on 17/10/2003. In R.D. No.06/2002, the plaintiff sought possession of the property, with J.Dr.-1 (son) and J.Dr.-2 (mother) as respondents. Following the death of J.Dr. No.1 in 22/07/2005, respondents No.2 to 5, his legal representatives, were brought into the case. They objected on 11/07/2008, claiming the agreement wasn’t for legal necessity due to J.Dr.-1’s alcohol addiction. The objection was rejected on 01/01/2011, leading to the trial court directing the issuance of a possession warrant. Respondents No.2 to 5 then filed First Appeal No.97/2011 in the District Court. The appellant argues that the lower court lacked jurisdiction to entertain and decide the appeal under Section 96 of the Civil Procedure Code, challenging the modified decree in R.C.S. No.1794/1999 based on the objection under Section 47 filed by respondents No.2 to 5 in the execution proceeding. The appeal court not only allowed the appeal but also issued an independent decree for partition and separate possession, which is contested in the present appeal. This second appeal pertains to a case where the appellant is dissatisfied with the judgment and decree issued by the District Judge-9 in Nagpur. The matter involves the rejection of objections under Section 47 of the Civil Procedure Code, and the dispute exists between the concerned parties. Additionally, the appellant contends that the Appellate Court shouldn’t have granted a decree for partition and separate possession in response to the execution proceeding, considering that the suit property had already been sold in compliance with the original decree favoring the appellant.

Laws Involved

Section 96 of Criminal Procedure Code

Appeal from original decree “It outlines the right of a party to appeal to the appellate court against a decree passed by the court of first instance. The section specifies that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.

Section 47 of Criminal Procedure Code

Deals with questions relating to the execution, discharge, or satisfaction of a decree. It specifies that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

Section 115 of Criminal Procedure Code

Empowers the High Court to exercise its supervisory jurisdiction over subordinate courts. This provision is invoked when the High Court believes that the subordinate court has either exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction when it should have.

Section 20 of Hindu Succession Act,1956

Deals with the devolution of interest in coparcenary property or self-acquired property of a deceased Hindu.

Issues

  • Whether the Regular Civil Appeal is Maintainable challenging the rejection under Section 47 of the Code of Civil Procedure or it is only a revision Under Section 115 of the Code of Civil Procedure?
  • Whether the lower Appellate Court was right in passing a decree for separate possession of the property particularly when the sale deed has already been executed pursuant to decree passed in suit for specific performance of contract?

Judgement

In this judgment, the court affirms the decision of the learned Appellate Court (District Judge-9, Nagpur) in R.C.A. No.97/2011. The appellant failed to establish legal necessity for selling the ancestral property, and the court notes that the objectors, being coparceners with a share in the property, have the right to retain possession in their share. The court finds no infirmity in the Appellate Court’s order, emphasizing that the executed decree is not binding on the share of the objectors. Consequently, the substantial question of law is answered in the affirmative, and the appeal is dismissed, confirming the judgment and decree dated 23/02/2015. The court orders the decree to be drawn up accordingly.

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Written by :- Sanjana Ravichandran

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The Kerala High Court ruled in favor of the company, applying the “reverse onus” principle and convicted the accused in a cheque bounce case.

Title: POPULAR MOTOR CORPORATION VS STATE OF KERALA

Decided on: 17th, OCTOBER 2023

Writ C No. – 1412 OF 2011

CORAM: THE HONOURABLE MR. JUSTICE C.S. DIAS

 INTRODUCTION 

The High Court of Kerala in Ernakulam, India, heard this criminal appeal case. It concerns claims made in accordance with Section 138 of the Negotiable Instruments Act regarding dishonored checks. Popular Motor Corporation, the appellant, filed the complaint against Vinod Bhaskar, the accused, who was found not guilty by the trial court because of alleged flaws in the complaint.

The High Court considered whether the complainant firm had the legal authority to file the complaint after the case was appealed. The accused was found guilty after the High Court reversed the trial court’s ruling in favor of the complainant. This case raises legal concerns about the prerequisites for submitting complaints under Section 138, especially in situations where the complainant is a business or is represented by authorized staff. It also highlights how the burden of proof in these kinds of situations is shifted to the accused.

FACTS OF THE CASE 

Popular Motor Corporation lodged a complaint against Vinod Bhaskar in this instance for sending out two cheques that bounced. The High Court decided in favor of Popular Motor Corporation, highlighting the complainant’s legal position and the accused’s obligations under Section 138 of the Negotiable Instruments Act, despite the trial court’s finding that the accused was not guilty.

COURTS ANALYSIS AND DECISION

The High Court ruled in favor of the company, applying the “reverse onus” principle and convicting the accused. In addition to being sentenced to one day in prison, the accused was also mandated to pay the company damages.

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Written by- Kusuma R

Cheque Bounce Case Kerala Hc

 

 

 

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The Calcutta High Court refused to quash legal proceedings against a tour operator accused of misusing booking funds, citing evidence of potential criminal breach of trust

Title: Ashish Kumar Vs. State of West Bengal & Anr.

Decided on: 19th, October 2023

Writ C No. – CRR 197 of 2023

CORAM: The Hon’ble Justice Partha Sarathi Chatterjee.

INTRODUCTION

 In this case Ashish Kumar attempted to have criminal charges brought under Sections 406 and 420 of the Indian Penal Code set aside. Dr. Swapnil Jaiswal filed a complaint at the start of the case alleging that Ashish Kumar had defaulted on payment for a tour package.

Ashish’s request was denied by the court, which decided that more research and a trial were necessary because the charges suggested possible offenses. This case highlights the necessity of differentiating between civil and criminal cases as well as establishing a sufficient basis for filing criminal charges.

FACTS OF THE CASE

A group of travellers made a reservation for a tour package with Ashish Kumar, who is said to have taken money but failed to pay hotel owners and taxi drivers. Ashish was the subject of a criminal complaint brought under IPC Sections 406 and 420. Ashish’s request to have the case dismissed was denied, so the court case could go forward.

COURTS ANALYSIS AND DECISION 

The case of Ashish Kumar, who was accused of taking money for a tour package but not paying hotel owners and taxi drivers as agreed, was examined by the court. The court determined that the accusations of cheating and breach of trust could be crimes if they were to be believed at face value. Consequently, it denied Ashish Kumar’s application to stop the proceedings, enabling the legal matter to continue.

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Written by- Kusuma R

Calcutta Hc 2

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Delhi High Court dismissed the review petition on the grounds of inordinate delay with no grounds for condonation.

Title: MONIKA GUPTA Versus SANJAY BANSAL

Date of Decision: 19.07.2023

+ RFA(OS) 59/2019 & CM APPL. 19452/2022

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

     HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi High Court dismissed the review petition on as the petitioner was lackadaisical in filing the review and there is no ground of reason to back this Inordinate delay of more than 1600 days.

Facts of the case

The appellant filed the current application in an effort to excuse the existing appeal’s 1969-day filing delay. The petitioner has chosen the current internal court appeal in opposition to a decision made on August 27, 2014, known as “the impugned order,” the respondent’s claim for particular judgement was heard by the learned Single Judge, wherein It was mandated to perform. According to the contested order, the parties had signed a contract to sell a piece of land known as Plot. Number 68, 50.40 square metres, Pocket 11, Block G, Sector 11, ‘The suit property’ in Rohini, New Delhi-110085, is up for sale Consideration in the amount of Rs. 80 lakhs.

The plaintiff said that on May 7, 2012—the day the Agreement to Sell was signed—it had paid the appellant/defendant a payment totaling Rs. 50,00,000/- (Rupees Fifty Lakhs). At the time of the Sale Deed’s execution, the remaining amount of Rs. 30,00,000/- (Rupees Thirty Lakhs) was due to be paid on or by May 15, 2012. The learned Single Judge observed that the defendant/appellant had not filed a written statement and that it was not on record despite having had enough opportunity to do so. Additionally, the appellant did not show up in front of the relevant court on the dates when the case was heard.

As a result, the respondent/plaintiff’s request for particular execution of the Agreement to Sell dated 07.05.2012 was granted by the learned Single Judge, who also decreed the suit.

Analysis of the court

The appellant claims that the respondent failed to file the reply despite being given enough opportunity to do so, which contributed significantly to the delay in the processes surrounding the review petition.

The appellant supported his claim by citing the ruling in the case of DSR Steel (Private) Limited v. State of Rajasthan & Ors.: (2012) 6 SCC 782, which held that the time spent by the party pursuing the review petition must not be taken into account when considering whether to excuse the delay in filing the appeal. He called this Court’s attention to paragraph 25.3 of the aforementioned ruling.

The appellant receives no benefit from the aforementioned ruling. Contrarily, the Court has mandated that the time spent by the party actively pursuing the remedy of review be excluded in suitable situations. In this instance, we determine that the appellant pursued its review petition in a careless manner, and we are unable to believe that the appellant did so conscientiously.

 It is obvious that the current appeal has been filed with excessive delay, and court finds no reason to excuse this.

 As a result, the appeal is denied.

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Written By Shreyanshu Gupta

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Delhi High Court dismissed the petition and held that the Court in exercise of power under Article 226 of Constitution of India does not substitute its view for the view of the competent authority.

Title: RABINDRA KUMAR SAHA versus UNION OF INDIA & ORS.

Judgment delivered on: 18th July, 2023

+ W.P.(C) 9118/2023 & CM APPL. 34697/2023

CORAM:  HON’BLE MR. JUSTICE SANJEEV SACHDEVA

      HON’BLE MR. JUSTICE MANOJ JAIN

Introduction

The fact that the petitioner’s term has been reduced alone does not mean that the decision was not made with the organization’s best interests in mind.  The Delhi High Court denied the plea and ruled that, in using its powers granted by Article 226 of the Indian Constitution, the court cannot substitute its own judgement for that of the appropriate authorities.

Facts of the case

The petitioner requests the quashing of the decision dated 09.06.2023, among other things, on the grounds that it is against the posting policies issued by the respondent on 14.05.1999 and 15.01.2013. Additionally, the petitioner asks the respondent to issue a directive allowing him to keep his position as Chief Engineer (P) at Project Chetak.

By the impugned order dated 09.06.2023, petitioner has been posted to Headquarters, Director General Border Road (DGBR) at New Delhi.

The petitioner challenges the ruling on the grounds that the petitioner’s posting duration was reduced from the customary tenure of two to three years. Furthermore, it is argued that the correct and mandated posting and transfer procedure was not followed in this particular instance. The petitioner’s claims that the proper posting procedure requires the suggestion of posting at his level to be routed via the Additional Director General (HQs) for determination at the level of DGBR.

Analysis of the court

It is a well-established legal principle that the Court, when exercising its powers under Article 226 of the Indian Constitution, does not replace the opinion of the competent authority with its own. The decision was made by the appropriate authority, the DGBR, taking into account organisational restrictions and organisational interest. The fact that the petitioner’s term has been reduced on its own does not mean that the decision was not made with the organization’s best interests in mind.

The posting policy, which the petitioner also cites, states that postings must take organisational needs into account and that these needs would take precedence over all other factors.

Given the structure of the organisation, the officer’s personal interests will take a back seat to organisational and functional requirements, which will take precedence over all other factors. There is no question that the Director General of Border Road is the senior and most competent authority with regard to posting. The contested posting order was issued by the Director General Border Road, or DGBR, of the relevant authority.

The competent authority has taken into account both the petitioner’s representation and the ADG (North-West)’s proposal, but due to organisational limitations, he has chosen not to recall either and has rejected the representation.

Additionally, we reject the claim made by the petitioner’s knowledgeable attorney that the proper procedure was not followed. The Director General Border Roads has final say in all matters.

It is not implied that the responsible authority did not take into account all pertinent factors and organisational interest only because it is claimed that the suggestion for the posting was not routed through the ADG (HQs). It is also undisputed that the ADG (HQs) recommendations are not binding on the DGBR, the final decision authority, as the DGBR is a superior authority to the ADG (HQs). It is also undisputed that the DGBR has the authority to reject the ADG’s recommendations.

We believe that the decision made by the competent authority, the DGBR, does not require interference even if there was a procedural error in not passing the file through the ADG (HQs), given that the DGBR has already considered the recommendation and representation and taken a decision in the organization’s best interest. The respondent’s argument that the file should not be sent to ADG (HQs) and that correct procedure has already been followed is, of course, unaffected by this.

we find that no malafide can be attributed to the respondent and impugned posting order does not warrant any interference by this Court.

Merely because there is an instance of an officer whose posting orders have been repeatedly changed citing organizational interest would not imply that in the case of the petitioner, organizational interest has not been kept in mind.

we find that there is no infirmity in the posting order or that the same warrants interference in exercise of power under Article 226 of Constitution of India. We find no merit in the petition.

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Written By Shreyanshu Gupta

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