Supreme Court

Ram Pratap Vs. Anand Kanwar and Ors.

MANU/SC/0882/2018

21.08.2018

Tenancy

Tenant cannot be evicted for defaulting rent without determination Of ‘Provisional Rent’ by Court

In instant appeal, The Appellant-Plaintiff is the landlord of the suit premises, whereas the Defendant is the tenant. The Plaintiff filed Suit for eviction of the Defendant from the suit Schedule premises on the ground of non-payment of rents under Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ("Rent Act"). The High Court vide order has held that, Section 13(3) of the Rent Act is mandatory in nature so far as provisional determination of the rent is concerned and without determination of rent, no decree of eviction on the ground of default can be passed. Issue involved in present case is whether compliance of Section 13(3) of the Act is mandatory in the suit for eviction on the ground of default and without determination of rent, no decree of eviction on the ground of default can be passed.

The material facts are not in dispute. The Plaintiff's suit for eviction was filed Under Section 13(1)(a) on the ground of default in payment of rent for the period from 1st july, 1981 till 30th June, 1984. The matter was posted on different dates and it was continuously adjourned for determination of rent. The case set up by the Plaintiff was that the rent had been enhanced to Rs. 15 per month, whereas the Defendant has contended that the rent was Rs. 10 per month.

The claim of the Plaintiff is that, the Defendant had committed default in payment of rent. There was a dispute between the Respondent and Onkar Singh as to title, for which suit was filed by him against the said Onkar Singh. The said suit was decreed on 7th November, 1983 and during the said litigation the Defendant was depositing rent in court under Section 19A of the Act.

It is evident that, the trial Court without determination of provisional rent under Section 13(3) of the Act decreed the suit. It is evident from Section 13(3) of the Rent Act that, the use of the word 'shall' puts a mandatory obligation on the court to fix provisional rent within three months of the filing of the written statement but before framing of the issues. The language of the Section is mandatory and places a duty on the court to determine the provisional rent irrespective of any application or not. If the rent so determined by the court is paid by the tenant as provided under Section 13(4), no decree for eviction of the tenant can be passed on the ground of default under Section 13(1)(a) in view of Section 13(6) of the Act.

It is thus clear that, unless the determination under Section 13(3) takes place, Section 13(6) cannot be complied with and a valuable right given to a tenant would be lost. The High Court has rightly held Section 13(3) of the Act to be mandatory. There is no merit in present appeal, which is accordingly dismissed.

Tags : Rent Determination Eviction

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Supreme Court

K. Subba Rao and Ors. Vs. The State of Telangana and Ors.

MANU/SC/0880/2018

21.08.2018

Criminal

Relatives of husband should not be roped in on basis of omnibus allegations unless specific instances of their involvement in crime are made out

In instant case, Respondent No. 2 submitted a complaint to the Police Station, Cyberabad, alleging harassment by her husband and his family members including the Appellants who are the maternal uncles of her husband. She also complained of the kidnapping of her son by the husband. On the basis of the said complaint, an FIR was registered under Sections 498A of the Indian Penal Code, 1860 (IPC).

The Appellants filed a petition under Section 482 of Code of Criminal Procedure, 1973 (CrPC) for quashing the proceedings in the crime registered pursuant to the complaint of Respondent No. 2. The High Court dismissed the said petition. The Station House Officer was directed not to arrest the Appellants till the completion of the investigation. Aggrieved by the judgment of the High Court by which the petition under Section 482 of CrPC filed by the Appellants was dismissed, they have filed the present appeal.

A perusal of the charge sheet and the supplementary charge sheet discloses the fact that the Appellants are not the immediate family members of the third Respondent/husband. They are the maternal uncles of the third Respondent. Except the bald statement that they supported the third Respondent who was harassing the second Respondent for dowry and that they conspired with the third Respondent for taking away his child to the U.S.A., nothing else indicating their involvement in the crime was mentioned. The Appellants approached the High Court when the investigation was pending. The charge sheet and the supplementary charge sheet were filed after disposal of the case by the High Court.

Criminal proceedings are not normally interdicted at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. The proceedings qua the Appellants under Sections 498A, 120B, 420, 365 of IPC quashed. Appeal allowed.

Tags : FIR Proceedings Quashing

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Supreme Court

Kehar Singh (D) thr. L.Rs. and Ors. Vs. Nachittar Kaur and Ors.

MANU/SC/0874/2018

20.08.2018

Property

Once factum of existence of legal necessity stood proved, no co-coparcener (son) has a right to challenge sale made by Karta of his family

Present appeal is filed by the legal representatives of the original Plaintiff against the final judgment passed by the High Court. By impugned order, the High Court allowed the appeal filed by the Defendants and dismissed the suit. It was held that, the suit land was an ancestral property of the family; that Pritam Singh being a Karta had a right to sell the suit land; that there did exist a legal necessity of the family for which the suit land was required to be sold by Karta; that there were two debts on the family and secondly the family had an agriculture land which needed improvement; that with a view to discharge the loan liability and to undertake the improvement on the land, the Karta sold the suit land for valuable consideration. The sale was, therefore, bona fide, legal and made for valuable consideration. It is, therefore, binding on the Plaintiff. The Plaintiff felt aggrieved and filed the present appeal by way of special leave in this Court.

The main question for consideration in this appeal, is whether the High Court was justified in holding that, the sale made by Defendant No. 1-Pritam Singh in favour of Defendant Nos. 2 and 3 was for legal necessity and, if so, whether it was legal and valid sale.

The approach, reasoning and the conclusion arrived at by the High Court on the question of legal necessity as to whether it existed in this case while selling the suit land by Pritam Singh or not does not call for any interference as the same was rightly dealt with by the High Court while appreciating the evidence on record.

It has come in evidence that firstly, the family owed two debts and secondly, the family also needed money to make improvement in agriculture land belonging to the family. Pritam Singh, being a Karta of the family, had every right to sell the suit land belonging to family to discharge the debt liability and spend some money to make improvement in agriculture land for the maintenance of his family. These facts were also mentioned in the sale deed. A case of legal necessity for sale of ancestral property by the Karta was, therefore, made out on facts. The Defendants were able to discharge the burden that lay on them to prove the existence of legal necessity for sale of suit land to Defendant Nos. 2 and 3. The Defendants thus satisfied the test laid down in Hindu law as explained by Mulla in Article 254(2) read with Article 241(a) and (g) quoted above.

Once the factum of existence of legal necessity stood proved, then, no co-coparcener (son) has a right to challenge the sale made by the Karta of his family. The Plaintiff being a son was one of the co-coparceners along with his father-Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the Plaintiff failed to prove by any evidence that, there was no legal necessity for sale of the suit land or that the evidence adduced by the Defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all. The conclusion arrived at by the High Court is just and proper. Appeal dismissed.

Tags : Sale Legal necessity Proof

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High Court of Patna

Ashok Kumar Mandal Vs. The State of Bihar and Ors.

MANU/BH/1636/2018

18.08.2018

Service

Departmental inquiry can continue despite acquittal of delinquent in a criminal case

The present writ petition has been filed for quashing the order issued by the District & Sessions Judge, whereby and whereunder, the Petitioner has been held guilty of charges leveled against him and he has been inflicted with the punishment of compulsory retirement. The Petitioner has further prayed for quashing of the consequential order, whereby the Petitioner has been ordered to be compulsory retired from the service with immediate effect on invoking the suspension of the petitioner herein.

There may be situations wherein, in case charges and the evidence adduced in the criminal trial and the disciplinary proceeding are one and the same, acquittal in the criminal trial could lead to exoneration in the disciplinary proceedings, however in the present case, not only the charges are different but the evidence led by the prosecution is also different as far as the criminal trial and disciplinary proceedings are concerned.

Since the charges and the set of evidence are different in the criminal trial from those in the disciplinary inquiry pertaining to the Petitioner herein, the Petitioner cannot derive any benefit in the present proceeding from his acquittal in the criminal trial. It is equally a well settled law that, departmental inquiry can continue despite acquittal of delinquent in a criminal case. In the connected disciplinary proceedings, there has been no irregularity or illegality and the order of punishment has been passed only after the Inquiry Officer has held the Petitioner guilty, after affording full opportunity to the Petitioner to defend his case and infact, the Petitioner has been let-off lightly, as he has been compulsorily retired and not dismissed from service for the proved charge of gross misconduct. There is no merit in the present petition, hence the same is dismissed.

Tags : Disciplinary proceedings Inquiry Legality

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High Court of Bombay

Reena Vs. The State of Maharashtra

MANU/MH/2419/2018

14.08.2018

Criminal

Dying declaration cannot be rejected on hyper technicalities; if it is trustworthy, conviction can be based solely on dying declaration, without any necessity of corroboration

By present appeal, the Appellant has challenged judgment passed by the trial Court, whereby she has been convicted under Section 304 Part I of the Indian Penal Code, 1860 (IPC) and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2000, The co-accused (husband of the Appellant) was acquitted by the trial Court. The trial Court found that, the contents of the said dying declarations pointed towards involvement of only the Appellant in causing the burn injuries to deceased Anita and that her co-accused i.e. husband was not involved

A dying declaration cannot be rejected on hyper technicalities and that if it is trustworthy and it inspires confidence, conviction can be based solely on the dying declaration, without any necessity of corroboration. The dying declaration must give an impression of genuineness, showing that the declarant was in a fit and conscious state of mind, who voluntarily made the statement, without any tutoring or being under any fear.

There is no material variance in the contents of the same in two dying declarations. The deceased has specifically described the manner in which the Appellant poured kerosene on her and lighted the match stick, thereby setting her on fire. In both the dying declarations, the role attributed to the appellant has been specifically stated and there is no discrepancy in the two versions. Both the dying declarations carry endorsement of doctors about fitness and conscious state of the deceased Anita when she made the two dying declarations.

As held by the Constitution Bench of the Hon'ble Supreme Court in the case of Laxman Vs. State of Maharashtra, there can be no specified statutory form for recording a dying declaration and that what is essentially required is that the person who records the dying declaration must be satisfied that the deceased is in a fit state of mind. Therefore, the objection raised on behalf of the Appellant that the two dying declarations in the present case could not be believed, is not sustainable.

The evidence of PW 3 (mother of the deceased) clearly establishes the presence of the accused at the place and time of the incident. The evidence of the defence witnesses has not been able to dislodge the prosecution case, which clearly stood fortified by the aforesaid two dying declarations on record. The trial Court was justified in relying upon the same as the dying declarations are found to be believable, trustworthy and inspiring confidence. The evidence and material on record was properly analyzed by the trial Court while convicting the Appellant under Section 304 Part I of the IPC, while acquitting the co-accused. Appeal is dismissed and the impugned judgment and order passed by the trial Court is confirmed.

Relevant

Laxman vs. State of MaharashtraMANU/SC/0707/2002

Tags : Conviction Legality Dying declaration

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Customs, Excise and Service Tax Appellate Tribunal

Surya Life Science Limited and Ors. Vs. Commissioner of Central Excise, Bharuch

MANU/CS/0072/2018

14.08.2018

Excise

Deemed exports cannot be clubbed for the purpose of calculation of clearances in DTA

Present appeals have been filed by Surya Life Sciences Limited and its director against confirmation of demand of duty and imposition of penalties. Learned Counsel for the Appellant pointed out that the Appellant is 100% EOU. A case was booked against the Appellant for exceeding the limit of their DTA clearance. He argued that the entire demand is based on ER-II returns submitted by the Appellant and the entire demand is raised by invoking extended period of limitation. In these circumstances, he argued that extended period of limitation cannot be invoked.

In terms of decision of the Hon'ble Gujarat High Court in the case of Anita Synthetics Pvt. Limited, deemed exports cannot be clubbed for the purpose of calculation of clearances in DTA and thus, the appeal on this count is allowed. A perusal of the show cause notice shows that, the entire data for issue of show cause notice has been derived from the returns filed by the assessee. In the circumstances, the appellant has disclosed the entire clearances to the Revenue therefore, the charge of suppression of facts or misdeclaration cannot be invoked against the Appellant. It is a failure on the part of the Revenue to detect the mistake of the Appellant.

Regarding the need of invocation of extended period of limitation in the cases where the B-17 Bond is executed is concerned, the matter has been clarified by the Tribunal in the case of Emcure Pharmaceuticals Limited. Therefore, demand is not sustainable on limitation. Since, the demand is not sustainable, the penalties imposed on the Appellant and its Director are also set-aside. Appeals allowed.

Relevant

Commissioner of Central Excise and Customs vs. Anita Synthetics (P.) Ltd. MANU/GJ/1027/2013

Tags : Demand Confirmation Validity

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