High Court of Delhi

Avinash Vs. Lt. Governor of Delhi and Ors.

MANU/DE/2976/2017

27.09.2017

Criminal

Sufficiency of the material cannot be called into question

The Petitioner has invoked the writ jurisdiction of present Court under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.PC') by impugning the order of the Lieutenant Governor, Delhi whereby the order of Additional Deputy Commissioner of Police, ('Additional DCP’) under Sections 47 & 50 of the Delhi Police Act, 1978 ('DP Act') directing the Petitioner to remove himself beyond the limits of the NCT of Delhi for a period of one year, was confirmed. The process of externment started on 30th April, 2015 when the proposal for externment of the petitioner was received by the DCP. It was proposed that, the Petitioner has been engaging himself in the commission of illegal acts and activities and his movements in the limits of the NCT of Delhi are calculated to cause alarm and danger disturbing societal peace. He is a potential source of harming public at large.

The word 'habitually' mentioned in sub-clause (ii), (iii) & (iv) of sub-section (C) of Section 47 of DP Act is elaborated by explanation which says that a person who within a period of one year immediately preceding the commencement of an action under Section 47 of DP Act is found in not less than three occasions to have committed or to have been involved in any of the acts referred in sub-clauses shall be deemed to have habitually committed that act. The word "habitually" is used only in sub-clause (ii) to (iv) of sub-section (C) of Section 47 of DP Act. Therefore, even if one of the clauses either (a) or (b) or sub clause (i) of clause (C) coupled with the other ingredients are present, the externment order of the competent authority cannot be termed invalid or illegal. Similar view was taken by this Court in Om Prakash v. Additional Deputy Commissioner of Police. A reference to the impugned order would show that, the reasons are covered not only in Sections 47(a) and 47(c)(i) of Act but also in Section 47(c)(ii) of Act and either of the provision followed by further satisfaction of the Competent Authority that, witnesses are not turning up, is sufficient to warrant action against the petitioner.

The Apex Court in State of NCT of Delhi & Another v. Sanjeev @ Bittoo, observed that, The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. It is true that, some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. It is not the sufficiency of material but the existence of material which is sine qua non.

In State of N.C.T. of Delhi and Anr. vs. Sanjeev @ Bittoo, it was observed that, the sufficiency of the material cannot be called into question. All that is needed to be seen is that, there was material on record available which would lead a prudent person to believe that, the requirements under Section 47 & 50 were satisfied. Further, the concerned authority has to assess the material on record objectively after taking into consideration all the relevant facts.

The Additional DCP in the present case came to the conclusion that, the presence of the Petitioner in the NCT of Delhi to be hazardous to society on the basis of the various cases registered against him in the year preceding the issuance of the notice under Section 47 & 50 of the DP Act and the statement of the witnesses recorded in camera by the then Additional DCP. The Petitioner as per the explanation to Section 47 of the DP Act comes within the meaning of a 'habitual offender' and therefore, his externment order was based on material on record and an objective analysis of the evidence on record.

In the present case, the competent authority i.e. Additional DCP after recording evidence and other material on record found that, the Petitioner was involved in several criminal cases punishable under IPC; the presence of the petitioner in the community is hazardous to the society and his continuous presence in the area is leading to cause alarm, harm and danger to the respectable citizens of society. He further came to the conclusion that, the witnesses are unwilling to depose against the petitioner being apprehensive of safety to their person and property and strengthening measures are required to be taken against him. There is no force in the arguments of Petitioner that, there was no sufficient material before the competent authority to pass an order of externment in violation of the fundamental right of the petitioner to leave at his place of residence.

Therefore, the satisfaction of the Additional DCP was based on existing material and relevant facts after following the procedure and safeguards as laid down in Section 47 to 50 of the DP Act. There is no reason to interfere with the order of externment and of the appellate authority which are based on reasons, which have been recorded and well within the parameters of Section 47 to 50 of DP Act. The petition is dismissed.

Relevant

State of N.C.T. of Delhi and Anr. vs. Sanjeev @ Bittoo MANU/SC/0257/2005
, Om Prakash v. Additional Deputy Commissioner of Police, MANU/DE/1488/2001
: (2002) 61 DRJ 481

Tags : Externment Proceedings Validity

Share :

Top

High Court of Orissa

Biswa Bhanu Patnaik and Ors. Vs. Pagal

MANU/OR/0607/2017

26.09.2017

Criminal

Once any act or omission has been found to have been committed by a public servant in discharge of his duty then, it must be given liberal and wide construction

The Petitioner have filed applications challenging the impugned order passed by Sub-divisional Judicial Magistrate, taking cognizance of offences under Sections 294/326/34 of the Indian Penal Code, 1860 (IPC) and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and issuance of process against them. It is contended that, the learned S.D.J.M., did not take recourse to the provision under Section 210 of Code of Criminal Procedure, 1973 (CrPC) in staying the complaint case proceeding and calling for a report from the police officer conducting the investigation. It is further submitted that, since the Petitioners are the public servants and they were discharging their official duties at the relevant point of time, without the necessary sanction as provided under Section 197 of Cr.P.C., the impugned order of taking cognizance which suffers from non-application of mind is vitiated in the eye of law.

Section 210(1) of Cr.P.C. indicates that, when it appears to the Magistrate that, police investigation in relation to the offence is under progress either during inquiry or trial of a complaint case which is the subject matter of the complaint petition then the Magistrate shall stay the complaint case proceeding and has to call for a report in the matter from the police officer conducting the investigation. In the complaint petition, it is mentioned that, information was submitted in the Court of S.D.J.M., on 14th January, 2004. The learned S.D.J.M., after receipt of the report from the complainant has forwarded it to the Officer in Charge of Champua Police Station, on the basis of which complaint was registered under sections 325/34 of the IPC. Therefore, as on the date of filing of the complaint petition on 19th January, 2004 and during course of inquiry of the complaint case proceeding, there was material before the Magistrate that, the investigation by the police is under progress in relation to the same offence. Therefore, compliance of Section 210(1) of Cr.P.C. by the Magistrate in staying the complaint case proceeding and calling for a report from the police officer was necessary which has not been done in the case. The contention raised by Petitioner that for non-compliance of provision 210(1) of Cr.P.C., the impugned order of taking cognizance suffers from illegality has substantial force.

In the case of Dilawar Singh Vrs. State of Delhi, Supreme Court held that, the principle has been statutorily recognized in Section 210 of the Cr.P.C. which enjoins upon the Magistrate that when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210 of Cr.P.C. are mandatory in nature. It may be true that, non-compliance of the provisions of Section 210 of Cr.P.C. is not ipso facto fatal to the prosecution because of the provision of Section 465 of Cr.P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice, the Court shall have regard to the fact whether there is a failure of justice and whether the objection could and should have been raised at an earlier stage in the proceedings.

Protection of sanction as envisaged under Section 197 of Cr.P.C. serves a very salutary purpose, viz., it protects the honest and sincere officer in the performance of their official duty and prevents demoralization of such officer against threat of frivolous and malicious prosecution leading to harassment. "Official duty" implies that the act or omission should have been done in discharge of the duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty then, it must be given liberal and wide construction. Existence of reasonable connection between the act complained of and the discharge of official duty is necessary. Law is well settled that the protection given under Section 197 of Cr.P.C. is not a cloak for doing the objectionable act. The excesses committed by the public servant during the performance of official duty are also protected under section 197 of Cr.P.C. It is the duty of the Court to find out whether the act done by the public servant and the official duty are so inter-connected/inter-related that one can postulate reasonably that, it was done by the accused in performance of the official duty, though possibly in excess of the needs and requirements of the situation.

In present case, there was ample material before the learned S.D.J.M., that at the relevant time, the Petitioners were performing their official duties and the complainant was found in a restricted zone of the Jail which is prohibited for the inmates for which there was exchange of words between the Warder and the complainant and also push and pull. Witness, the doctor, during inquiry under Section 202 of Cr.P.C. has stated that, he treated the complainant on 11th December, 2003 and as per his advice on 13th December, 2003, X-ray of the right hand of the complainant was taken from which hairline fracture was detected. Therefore, there was no complaint even in the Jail Hospital on 8th December, 2003 regarding any injury sustained by the complainant.

The Petitioners were performing their official duties on the relevant day and the act complained of due to which the offence is stated to have been committed appears to have been committed while acting or purporting to act in the discharge of their official duties. Even though the allegations are of commission of excesses by the Petitioners, the Petitioners cannot be prosecuted without sanction from the competent authority. Sanction for prosecution under Section 197 of Cr.P.C. by the appropriate authority was necessary pre-requisite in the case before taking cognizance of the offence. Resultantly, the impugned order suffers from non-application of mind and is hereby set aside. Accordingly, applications are allowed.

Relevant

Dilawar Singh Vrs. State of Delhi,MANU/SC/3678/2007
: A.I.R. 2007 Supreme Court 3234

Tags : Proceedings Sanction Legality

Share :

Top

High Court of Bombay

Ankita Ashok Nimmalwar Vs. State of Maharashtra and Ors.

MANU/MH/2204/2017

25.09.2017

Civil

The validity certificates issued by following a lawful procedure cannot be tinkered

The petitioner in present petition challenges the order passed by the Scheduled Tribe Certificate Scrutiny Committee, whereby the caste certificate validity claim of the Petitioner belonging to the "Mannervarlu", Scheduled Tribe has been rejected. It is the case of the Petitioner that, by birth she belongs to "Mannervarlu" tribe, which was notified as Scheduled Tribe under the Act of the Parliament No. 108 of 1976. The Petitioner was granted a caste certificate dated 7th April, 2007 by Respondent No. 5/competent authority, which according to the Petitioner was granted after necessary enquiry.

Present is a peculiar case where the Caste Scrutiny Committee has discarded four vital documents viz. caste validity certificates issued by the Scrutiny Committee as granted to the Petitioner's father, real brother, real sister and real uncle that, they belong to Scheduled Tribe "Mannervarlu". The report of the vigilance enquiry clearly indicates that, the Vigilance Cell had taken into consideration the caste certificates which were issued to the Petitioner's uncle (father's brother) and sister of the Petitioner's father recording that, both of them possess certificates belonging to "Mannervarlu" tribe.

Merely to say that, the vigilance enquiry undertaken while granting a validity certificate to the petitioner's father was casual and not appropriate is not sufficient. There is no discussion whatsoever in the impugned order to justify the reasons. In fact, the vigilance report would indicate that, the documents from the paternal side of the Petitioner's father were taken into consideration. Further, there are no comments in regard to the vigilance enquiries as conducted in regard to the validity certificates issued to the other family members, than the father.

High Court is of opinion that, approach of the Caste Scrutiny Committee in the present case is totally casual. The reasoning as set out is thoroughly unjustified to discard the caste claim of the Petitioner. The Caste Scrutiny Committee on the basis of such reasons, could not have discarded the caste validity certificates granted to four of the near relatives has no basis. There was no material before the Caste Security Committee which can lead to any inference that, each of the vigilance enquiries in cases where the Caste Scrutiny Committee has granted caste validity certificate to the petitioner's father, sister and uncle were in any manner flawed.

In case of Mohammad Munaf Mohammad Hanif Bedre & Ors. vs. State of Maharashtra & Ors. Held that the recourse to the affinity test can be one of the test, if any other conclusive material was not available. In the present case, there was sufficient material available in the form of caste validity certificate granted to the petitioner's father, brother, sister and the real uncle of the Petitioner. Thus, the reasons as recorded by the Caste Scrutiny Committee in the impugned order that, these four vital documents cannot be considered are completely unjustified in the absence of any material that the said certificates were issued by the scrutiny committee without jurisdiction, or were obtained by fraud or were so palpably illegal that they cannot be accepted/referred in law. If such reasoning is accepted which is without there being any basis then the entire sanctity in the whole process undertaken in issuing such caste validity certificates would be lost. The validity certificates issued by following a lawful procedure cannot be tinkered in the manner. The law in this regard is well settled. There is no whisper of any fraud being played by the real relatives of the Petitioner to obtain those caste validity certificates. Further, it is also not the case of the Respondents that, the committee lacked jurisdiction to issue such caste validity certificates to the said near relatives of the petitioner. It is also not the case of the Respondents that, some other vital documents are discarded by the earlier Caste Scrutiny Committee in granting the caste validity certificates to the said near relatives of the petitioner. Impugned order is quashed.

Relevant

Mohammad Munaf Mohammad Hanif Bedre & Ors. vs. State of Maharashtra & Ors.

Tags : Caste certificate Validity

Share :

Top

Supreme Court

Parbatbhai Aahir and Ors. Vs. State of Gujarat and Ors.

MANU/SC/1241/2017

04.10.2017

Criminal

Heinous and serious offences cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute

In present matter, High Court of Gujarat dismissed an application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC). The Appellants sought the quashing of a First Information Report registered against them for offences punishable under Sections 384, 467, 468, 471, 120-B and 506(2) of the India Penal Code, 1960 (IPC). Learned Counsel submitted that, the dispute between the complainant and the Appellants arose from a transaction for the sale of land. It was urged that the dispute is essentially of a civil nature and since parties have agreed to an amicable settlement, the proper course for the High Court would have been to quash the FIR in exercise of the jurisdiction conferred by Section 482 of CrPC.

In Gian Singh v. State of Punjab, it was observed that, the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of CrPC. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. The High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.

According to broad principles which emerge from the precedents, Section 482 of CrPC preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of CrPC. The power to quash under Section 482 of CrPC, is attracted even if the offence is non-compoundable. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482 of CrPC, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

In the exercise of the power under Section 482 of CrPC and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 of CrPC to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that, the Appellants were absconding and warrants had been issued against them under Section 70 of CrPC. The second is that, the Appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the Appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that, the High Court observed that, in a case involving extortion, forgery and conspiracy where all the Appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that, a settlement had been arrived at with the complainant.

The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that, they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of IPC. The Criminal Appeal dismissed.

Relevant

Gian Singh v. State of Punjab MANU/SC/0781/2012
: (2012) 10 SCC 303

Tags : FIR Quashing Grant

Share :

Top

Supreme Court

Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased) through L.Rs. and Ors.

MANU/SC/1236/2017

03.10.2017

Civil

Mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice

Present appeal arises out of the judgment passed by the Gujarat High Court dismissing the Special Civil Application filed by the Appellant, consequently affirming the order passed by the trial Court rejecting the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC). Appellant filed an application for impleading the legal representatives of deceased Defendant No. 7 on record, under Order 1 Rule 10 of the CPC. The application also came to be dismissed by the trial Court and confirmed by the High Court by passing the impugned judgment. The only question which is to be decided in this appeal is, whether the legal representatives of one of the Defendants can be impleaded under Order 1 Rule 10 of the CPC where such Defendant expired prior to the filing of the suit, particularly when the application filed by the Plaintiff to bring the legal representatives of the deceased on record under Order 22 Rule 4 of the CPC was dismissed earlier as not maintainable.

Order 22 Rule 4 of the CPC, applies only in the case where the death of one of the several Defendants or the sole Defendant occurs during the subsistence of the suit. If one of the Defendants has expired prior to the filing of the suit, the legal representatives of such deceased Defendant cannot be brought on record in the suit under Order 22 Rule 4 of the CPC.

In the matter on hand, the sale was made in favour of Defendant No. 7, and the validity of the sale deed was the subject matter of the suit. The purchaser of the property, i.e. Defendant No. 7, though dead at the time of filing the suit, was made one of the Defendants erroneously. The persons who are now sought to be impleaded under Order 1 Rule 10 of the CPC are the legal representatives of the deceased Defendant No. 7. Therefore, there cannot be any dispute that, the presence of the legal representatives of the deceased is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions in the suit. Their presence is necessary in the suit for the determination of the real matter in dispute. Therefore, they are needed to be brought on record, subject to the law of limitation, as contended under Section 21 of the Limitation Act.

Merely because the earlier application filed by the Appellant under Order 22 Rule 4 of the CPC was dismissed on 09th September, 2009 as not maintainable, it will not prohibit the Plaintiff from filing another application, which is maintainable in law. There was no adjudication of the application to bring legal representatives on record on merits by virtue of the order dated 9th September, 2009. On the other hand, the earlier application filed under Order 22 Rule 4 of the CPC was dismissed by the trial Court as not maintainable, as Defendant No. 7 had died prior to the filing of the suit and that Order 22 Rule 4 of the CPC comes into the picture only when a party dies during the pendency of the suit. The only course open to the Appellant in law was to file an application for impleadment to bring on record the legal representatives of deceased Defendant No. 7 under Order 1 Rule 10 of the CPC. Hence, the order passed by the trial Court on the application filed under Order 22 Rule 4 of the CPC, dated 09th September, 2009, will not act as res-judicata.

Order 1 Rule 10 of the CPC enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the CPC, empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that, the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that, in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the CPC gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.

In the case of Ram Prasad Dagduram v. Vijay Kumar Motilal Mirakhanwala and Ors., a bench by majority held that, the legal representatives of a party can be added under Order 1 Rule 10 of the CPC, but the date on which they were impleaded shall be the date on which the suit was instituted by or against them. In the said matter, this Court on facts held that the suit was barred by limitation as per Section 22 of the Limitation Act of 1908. This Court, though it concluded that the Court has got the power to join a particular person as a party under Order 1 Rule 10 of the CPC, did not interfere in the matter inasmuch as this Court found that the suit was barred by limitation. It is relevant to note that the said suit was of the year 1958. Since the Limitation Act, 1963 (now in force) was at that time not in existence, this Court applied the old limitation law and held that the suit was barred by limitation. As of now, the proviso to Section 21(1) of the Limitation Act 1963 empowers the Court to direct that the suit shall be deemed to have been instituted on an earlier date, where the omission to include a new Plaintiff or Defendant was due to a mistake made in good faith. Therefore, it is open to the Plaintiff in the matter on hand to prove "good faith" on his part in not including the legal representatives of deceased Defendant No. 7, during the course of trial of suit.

This Court in the case of Karuppaswamy and Ors. v. C. Ramamurthy, has permitted the Plaintiff to modify the application filed by him under Order 22 Rule 4 of the CPC, to make it an application under the provisions of Sections 151 and 153 of the CPC. In the said matter also the suit was filed against a dead person. This Court proceeded further to conclude that the Plaintiff has shown good faith as contemplated Under Section 21(1) of Limitation Act and hence the impleadment of the legal representatives/heirs must date back to the date of the presentation of the plaint.

In the matter on hand, though the trial Court had rightly dismissed the application under Order 22 Rule 4 of the CPC as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the CPC as one filed under Order 1 Rule 10 of the CPC of Civil Procedure, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the CPC at the initial stage by the advocate for the Plaintiff, the parties should not be made to suffer. It is by now well settled that, a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 Code of Civil Procedure speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a Plaintiff or Defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the CPC will of course act according to reason and fair play and not according to whims and caprice. The expression "to settle all questions involved" used in Order 1 Rule 10 (2) of the CPC is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof.

The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that, the party impleaded must have a direct interest in the subject matter of litigation. In a suit seeking cancellation of sale deed, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties. In the matter on hand, since the purchaser of the suit property, i.e., Defendant No. 7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the Plaintiff did not know about the death of the purchaser, he cannot be non-suited merely because of his ignorance of the said fact. To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1 Rule 10 of the CPC, inasmuch as the application under Order 22 Rule 4 of the CPC was not maintainable.

It is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the CPC can be invoked. Since, one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 under Order 1 Rule 10 of the CPC, for the simple reason that, the Plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that, the High Court experienced in granting the application filed by the Plaintiff under Order 1 Rule 10 of the CPC discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.

There is no bar for filing the application under Order 1 Rule 10 of CPC, even when the application under Order 22 Rule 4 of the CPC was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial. The impugned judgment of the High Court is set aside. The appeal is allowed. The Trial Court is directed to implead the legal representatives of deceased Defendant No. 7 and bring them on record, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the CPC, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial.

Relevant

Ram Prasad Dagduram v. Vijay Kumar Motilal Mirakhanwala and Ors. MANU/SC/0014/1966
: AIR 1967 SC 278, Karuppaswamy and Ors. v. C. Ramamurthy, MANU/SC/0354/1993
: 1993 (4) SCC 41

Tags : Legal representatives Impleadment Rejection Validity

Share :

Top

Supreme Court

Chittaranjan Maity Vs. Union of India (UOI)

MANU/SC/1235/2017

03.10.2017

Arbitration

Intervention of the Court is envisaged only in few circumstances like fraud or bias by the Arbitrators or violation of natural justice

The Appellant, in present appeals, has challenged the legality and correctness of the judgment and order passed by High Court of Calcutta. Appellant submits that, the Division Bench failed to appreciate the question that, issuance of 'No Claims Certificate' by the Appellant was not urged before the Chief Justice in the proceedings under Section 11(6) of Arbitration and Conciliation Act, 1996. The said plea was not even urged before the Arbitral Tribunal or before the learned Single Judge. The issue relating to existence of any live claim or the arbitrability of the dispute ought to have been urged in the proceedings under Section 11(6) of the 1996 Act or at least before the Arbitral Tribunal. The question as to whether there was any arbitral dispute or not, could not have been entertained by the Division Bench for the first time. It is further submitted that, the Tribunal has rightly passed an award and granted pre-award and pendente lite interest from 17th July, 1992 till the realization of the award amount. Whether the Division Bench was justified in considering the arbitrability of the dispute for the first time in the appeal and that whether the Arbitral Tribunal was justified in awarding interest on the delayed payments in favour of the Appellant.

It is evident from the materials on record that, the dispute had arisen between the parties in relation to the contract in question. Therefore, the Appellant filed an application before the Chief Justice of the High Court of Calcutta under Section 11(6) of the 1996 Act, for appointment of an Arbitrator in terms of the contract which was allowed and an Arbitral Tribunal was constituted for adjudication of the dispute. The Arbitrator after giving the parties opportunities of hearing and after considering the materials placed on record made and published the award.

Learned Single Judge had dismissed the application filed by the Respondent for setting aside the said award. The issue relating to arbitrability of the dispute was not raised in the proceeding under Section 11(6) of the 1996 Act. One of the issues which can be considered by the Chief Justice under this provision is whether the claim is a live claim. This issue can also be kept open to be decided by the Arbitral Tribunal provided the said plea is urged before the Chief Justice. The Respondent had not raised the said plea before the Chief Justice. Be that as it may, the Respondent has not urged the said plea either before the Arbitral Tribunal or before the learned Single Judge in the proceedings under Section 34 of the 1996 Act.

This Court, in Mcdermott International Inc. v. Burn Standard Co. Ltd. and Ors., has held that, the party questioning the jurisdiction of the Arbitrator has an obligation to raise the said question before the Arbitrator. It has been held that, after the 1996 Act came into force, under Section 16 of the 1996 Act the party questioning the jurisdiction of the arbitrator has an obligation to raise the said question before the arbitrator. Such a question of jurisdiction could be raised if it is beyond the scope of his authority. It was required to be raised during arbitration proceedings or soon after initiation thereof. The jurisdictional question is required to be determined as a preliminary ground. A decision taken thereupon by the arbitrator would be the subject-matter of challenge under Section 34 of 1996 Act. In the event the arbitrator opined that he had no jurisdiction in relation thereto an appeal there against was provided for under Section 37 of 1996 Act.

Intervention of the Court is envisaged only in few circumstances like fraud or bias by the Arbitrators, violation of natural justice. The Court cannot correct the errors of the Arbitrators. Therefore, the Division Bench was not justified while considering the arbitrability of the disputes for the first time, particularly, when the Respondent has not urged the issue relating to 'No Claims Certificate' before the Chief Justice, Arbitral Tribunal or before the learned Single Judge.

The total interest awarded by the Arbitral Tribunal is Rs. 12,44,546/- which includes interest for the pre-reference period and also pendente lite interest. Section 31(7)(a) of the 1996 Act provides that,unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. In this Section, a specific provision has been created, whereby if the agreement prohibits award of interest for the pre-award period (i.e. pre-reference and pendente lite period), the Arbitrator cannot award interest for the said period.

Admittedly, the GCC, governing the contract between the parties, contains a Clause which bars the payment of interest, which provides that, no interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract, but government securities deposit in terms of Sub-clause (1) of this Clause will be repayable (with) interest accrued thereon.

In Union of India v. Bright Power Projects (India) Private Limited, a three-Judge Bench of this Court, after referring to the provisions of Section 31(7)(a) of the 1996 Act, held that when the terms of the agreement had prohibited award of interest, the Arbitrator could not award interest for the pendente lite period. When parties to the contract had agreed to the fact that interest would not be awarded on the amount payable to the contractor under the contract, they were bound by their understanding.

The Arbitral Tribunal had determined the amount payable to the Appellant in a sum of Rs. 11,13,136/- and interest of Rs. 12,44,546/-. A sum of Rs. 38,82,150/- was deposited by the Respondent which includes the award amount, interest for the pre-reference period, pendente lite and post-award interest. The Appellant is not entitled for any interest. The Appellant has already withdrawn 50% of the amount deposited by the Respondent, which is in excess of the award amount exclusive of interest. Respondent is directed not to recover the excess amount withdrawn by the Appellant. The appeals are partly allowed.

Relevant

Mcdermott International Inc. v. Burn Standard Co. Ltd. and Ors. MANU/SC/8177/2006
: (2006) 11 SCC 181, Union of India v. Bright Power Projects (India) Private Limited MANU/SC/0712/2015
: (2015) 9 SCC 695

Tags : Dispute Arbitrability Award Interest

Share :