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Thursday, 26 October 2017

Ad interim injunction - Defendant made a statement that he will not demolish the wall - I

*IMPORTANT DECISIONS (14.10.2017)*

*Ad interim injunction - Defendant made a statement that he will not demolish the wall - In view of statement case adjourned for filing written statement and reply to stay application - Written statement filed - Two days thereafter wall demolished - View taken by Courts below that statement of defendant that he shall not demolish wall was valid till filing of written statement which is a possible view - No illegality in the view taken by Courts below.  (2010(1) Civil Court Cases 269 (P&H)*

*Civil & Criminal liability - Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. (2010(1) Criminal Court Cases 779 (S.C.)*

*Contempt of Courts - Default alleged though is unmistakably evident, but in the absence of any wilful or deliberate intention to commit the same, a person is not liable for contempt. (2017(3) Apex Court Judgments 080 (S.C.)*

*Criminal breach of trust & cheating - Non-payment of bill amount pertaining to contract between parties - Offence u/ss 406 & 420 IPC not made out. (2015(1) Criminal Court Cases 002 (S.C.)*

*Death of complainant - Held, death of complainant cannot ipso-facto bring about termination of criminal proceeding. (2014(1) Criminal Court Cases 573 (Allahabad)*

*Dishonour of cheque - Accused residing outside jurisdiction of Court - Inquiry/investigation u/s 202 Cr.P.C. - Held, provision of S.202 Cr.P.C. is not applicable to proceedings u/s 138 of Negotiable Instruments Act. (2014(3) Civil Court Cases 475 (P&H)*

*Dying declaration -  Even a statement given u/s 161 Cr.P.C. to a police officer may be regarded as a dying declaration. (2017(3) Criminal Court Cases 860 (Calcutta)*

*Offence u/ss 307, 452, 324, 323, 427 & 34 IPC - Compromise - Chances of conviction are remote and bleak  - FIR quashed. (2017(3) Criminal Court Cases 851 (P&H)*

*Tenancy agreement between employer and employee - Employee is under contractual obligation to vacate the quarter on his retirement. (2017(3) Apex Court Judgments 114 (S.C.)*

*Written statement -  Failure to make specific denial amounts to an admission. (2017(3) Apex Court Judgments 001 (S.C.)*

Loudspeakers-Religious-places-Vs-Right to privacy-Delhi-HC-issues-Notice to Centre-read-petition/

Loudspeakers-Religious-places-Vs-Right to privacy-Delhi-HC-issues-Notice to Centre-read-petition/ The Delhi High Court has issued notice to the Union of India on a public interest litigation for removal of loudspeakers from all religious structures on the ground that their use is an encroachment on a person’s “right to be left alone and spatial control” and thus violates the newly recognised fundamental right to privacy.

A bench headed by Acting Chief Justice Gita Mittal issued the notice on the PIL filed by social activist Sanjjiiv Kkumaar.

Loudspeakers not intrinsic to any religion

Sanjjiiv, in his PIL, traced the advent of all religions in India to say, “Hinduism is 4,000 years old, Jainism is 2,600 years old, Buddhism is 2,500 years old, Christianity is 2,000 years old, Islam is 1,400 years old, Sikhism is 500 years old and on another hand, Moving coil current loudspeakers are not even 100 years old. Thus, it’s beyond doubt, and as facts and truth speaks for itself per se, loudspeakers were never a part of any religion”.

“As loudspeakers is not part of/intrinsic to any of the religions as all religions are 4,000 to 500 years old whereas loudspeaker came into existence in 1924, that is less than 100 years and hence, banning them will not violate Article 25 or 26 of the Constitution of India,” he said.

The petition also quoted from the Supreme Court’s verdict in Forum, Prevention of Envn. and Sound Pollution as: “No religion ever says to force the unwilling to listen to expressions of religious beliefs.”

“This observation of Hon’ble Apex Court is of utmost importance as what Supreme Court says, Loudspeakers do exactly opposite of the same and hence violate fundamental rights of citizens of India,” the PIL said.

Man’s house is his castle, loudspeakers breach right to be left alone.

The petitioner relied heavily on the privacy judgment of the Supreme Court to say that its use is breach of privacy.

“Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty,” it said.

It quoted an observation made by Justice DY Chandrachud in the privacy judgment that “one’s house is like a castle to him. If loudspeakers are encroaching one’s right of spatial control (one’s home), one’s right to left alone, then what’s the meaning of fundamental rights? It will be just on paper. Hence to protect and uphold the fundamental rights of one’s “left alone”, “personhood (physical and mental peace), spatial control - Loudspeakers need to go”.

The petitioner said that use of loudspeakers certainly takes away the right of the citizens to speak with others, their right to read or think or the right to sleep.

“There may be heart patients or patients suffering from nervous disorder may be compelled to bear this serious impact of sound pollution which has had an adverse effect on them. Toddlers, kids are equally affected,” he added.Good Morning 💐Reg.RCK R.Chandra Kumar Advocate & Candt.for Treasurer.

Important judgments (20/10/2017)

Important judgments (20/10/2017)

Senior Citizens Act – Scheme of the Act does not contemplate for resolving property disputes between or among members of a family - 2017 (5) KHC 1 (DB)

Campus politics – Political activities like dharna, hunger strikes and other practices like sathyagrah have no place in academic institutions - 2017 (5) KHC 13 (DB)

Co-operative Society – S.4(5) of Payment of Gratuity Act which enables an employee to opt for a better terms of gratuity will prevail over Second Proviso to Rule 59(iii) of Co-operative Societies Rules - 2017 (5) KHC 15 (FB)

Family Courts — If one of the parties desires that the proceedings should be held in camera, Family Court has no option but to so direct - 2017 (5) KHC 48 (SC) 

Rule 5 of Advocates’ Welfare Fund Rules is in conflict with Section 15 of Advocates’ Welfare Fund Act – Court reads down Rule 5 - 2017 (5) KHC 89

Family Courts Act — Once settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed - 2017 (5) KHC 48 (SC)

Answers given in answer to the leading questions put in the examination-in-chief are liable to be discarded - 2017 (5) KHC 75

There can be acquisition of part of building or house - 2017 (5) KHC 1 (SC) (SN)

Constitution of India – Custodial deaths - Supreme Court issues directions in the matter - 2017 (5) KHC 2 (SC) (SN)

IPC S.34 — Principle of vicarious liability enshrined by S.34 extends only to the extent of common intention shared by parties - 2017 (5) KHC 83 (DB)

Senior Citizens Act – A person’s obligation to maintain a senior citizen has nothing to do with prospect of his possessing senior citizen’s property or his succeeding to senior citizen’s estate - 2017 (5) KHC 1 (DB)

Campus politics – In academic institutions, politics or political activities cannot be permitted - 2017 (5) KHC 13 (DB)

Challenge in fixation of fair value of land – Can be raised in appeal before District Collector under Section 45A of Stamp Act - 2017 (5) KHC 24

Canara Bank — Service terminated with punishment of compulsory retirement in the year 1986 – Those retired prior to 29/09/1995 up to 01/01/1986 formed a single homogeneous group and Bank is not justified in extending the benefit of pension retrospectively from 29/09/1995 to 01/01/1986 - 2017 (5) KHC 26 (DB)

Evidence Act, 1872 S.32(1) – Mere suspicion or apprehension in the mind of maker shall not be placed under S.32(1)  - 2017 (5) KHC 35 (DB)

CrPC S.164 — Statement recorded by Magistrate under S.164 can be used only either for corroboration or for contradiction and cannot be accepted as a substantive piece of evidence - 2017 (5) KHC 35 (DB)

Family Courts — In a transfer petition, no direction can be issued for video conferencing - 2017 (5) KHC 48 (SC) 

NI Act S.138 – Mere admission of accused that he issued a signed blank cheque cannot mean that he has admitted to execution of cheque - 2017 (5) KHC 75

Any other Authority other than State Co-operative Election Commission holding election when S.28B of Co-operative Societies Act is in force is null and void - 2017 (5) KHC 79 (DB)

SC: Non- production of the original — Not material if it getting lost sufficiently explained

_*⭐SC: Non- production of the original — Not material if it getting lost sufficiently explained — Not lodging of police complaint of the loss not crucial — Reliance on certified copy permissible under Succession Act, 1925 — S.63— Evidence Act, 1872, Ss. 65(c) and 63 (1) (para15).*_

_Case:_
_*Leela Rajagopal Vs Kamala Menon Cocharan.*_

_Citation:_
_*(2014) 15 SCC 570: (2015) 4 SCC (Civ) 267.*_

_Bench Strength *-2*_
_Coram: *Ranjan Gogoi and, R.K. Agrawal JJ.*_
***************************
_*Shared by:*_
_*ADV. MAHESH VASWANI,*_
_*MUMBAI.*_
_*Mobile: 9821610888*_
***************************

LEGAL GROUNDS FOR CHALLENGING VALIDITY OF WILL

LEGAL GROUNDS FOR CHALLENGING VALIDITY OF WILL

Undue Influence means exercise of excessive persistence, dominance of physical power mind, and  will, or any burden applied due to authority or position, or relationship in relation to the power of the person submitting to it. It must be shown that will was the consequence of the implementation of the power and it is not sufficient to show that a person was in a situation or had the power to overcome the testator.

IN THE HIGH COURT OF BOMBAY
Testamentary Suit No. 74 of 2011 in Testamentary Petition No. 970 of 2009

Decided On: 14.10.2016
Panna Surendra Mehta
Vs.
Purnima Latik Shah
Hon'ble Judges/Coram:
G.S. Patel, J.
Citation: 2017(2) ALLMR 278
A. PARTIES AND THE LITIGATION HISTORY

1. Jaswantbhai Natwarlal Jolia ("Jaswantbhai") died on 26th January 2004.1 He left a Will dated 10th August 2002.2 The Plaintiff, Panna S. Mehta ("Pannaben"), seeks Letters of Administration with Will Annexed to this Will. She is Jaswantbhai's sister-in-law, his wife Veenaben's sister. Panna is one of the beneficiaries of the Will. The major beneficiary is Panna's son, Ashitkumar Surendra Mehta, also known as Asit Mehta ("Asit"). He was also the sole executor named in the Will. Asit died on 18th May 2009.
2. Jaswantbhai's wife, Veena, died on 3rd March 2000, about four years before Jaswantbhai passed. Jaswantbhai and Veena had no children of their own. Jaswantbhai had three sisters, Ramaben Krishnalal Shah, Indiraben V Bankley and Trilochanaben T. Fozdar, and a brother Kanhaiyalal Dalal. Ramaben and Indiraben died before Jaswantbhai. He was, therefore, survived by Trilochanaben and Kanhaiyalal, his surviving siblings.

3. After Jaswantbhai died, Asit sought probate. He filed Testamentary Petition No. 243 of 2004. That petition was opposed by Trilochanaben and by three of Ramaben's children (Panna, Jitendra and Kishore). It was renumbered as Testamentary Suit No. 22 of 2004. Kanhaiyalal died on 10th May 2007 without leaving any heirs. Asit filed Notice of Motion No. 104 of 2007 to dismiss the caveats filed by Ramaben's children, contending that they had no caveatable interest, since, at the time when succession opened, Jaswantbhai's heirs in law were Trilochanaben and Kanhaiyalal, and they took before, in preference to, and to the exclusion of Ramaben's children. The Notice of Motion succeeded, and Ramaben's children's caveats were dismissed.

4. Asit died on 15th May 2009 and it was then held that his probate petition abated.4 On 30th September 2009, his mother, Pannaben, filed the present petition for Letters of Administration with Will Annexed seeking to prove Jaswantbhai's Will. On 25th November 2009, Trilochanaben filed Testamentary Petition No. 45 of 2010 for Letters of Administration to Jaswantbhai's estate. Pannaben filed a Caveat, and this was renumbered as Testamentary Suit No. 118 of 2010. On 1st November 2010, Trilochanaben died in Mumbai. She left a Will dated 11th February 2008. In this, she purported to make bequests of her share, if any, from Jaswantbhai's estate inter alia to her own children and to the children of her deceased sister, Ramaben.

5. On 1st April 2011, Trilochanaben's daughter, Purnima Latik Shah ("Purnima") filed a Caveat in the present Petition for Letters of Administration with Will Annexed brought by Pannaben. On 16th January 2013, Jitendra Krishnalal Shah and Jaisukh Krishnalal Shah, two of Ramaben's children, filed Caveats in the present Petition. Pannaben filed Notice of Motion No. 49 of 2013 for discharge of those Caveats. The Motion succeeded: the two Caveats by Jitendra and Jaisukh were discharged.5 Thus, Ramaben's children had twice opposed proof of Jaswantbhai's Will: first in the Probate Petition filed by Asit and again in the Petition for Letters of Administration with Will Annexed filed by Pannaben. Both oppositions failed. The surviving opposition to the present Petition is only, therefore, by Purnima.

B. THE WILL DATED 10TH AUGUST 2002

6. I turn now to the physical aspect of the Will dated 10th August 2002. This is a two-page document typed in English. Jaswantbhai's signatures appear on both pages. The attesting witnesses to this Will are Mr. Kirit Damania, an Advocate & Solicitor of this Court, and one Ms. Shree Kumary S. Mr. Damania was Jaswantbhai's friend and legal advisor. Ms. Shree Kumary S was his stenographer. In the document, the testator refers to himself as "Jaswantbhai"; he signs it as "Jaswantlal". This, as we shall see, is of significance because it is central to Purnima's opposition that he was never known by this name but only as "Jaswantlal". In the Will, Jaswantbhai sets out his properties and assets in some detail. He makes an absolute bequest in favour of his nephew, Ashitkumar (alias Asitkumar, alias Asit), and directs him to take charge of his entire estate. He also devises and bequeaths all his gold and other valuable ornaments and silver utensils in equal shares to 1) Devyani H. Kapadia (Pannaben's sister) and 2) Pannaben. The Will also speaks of a flat at Kirti Manor on S.V. Road, Santacruz (W). The words "with two garages" are handwritten. Then there is the signature of the testator on the first page.

C. THE CAVEAT & AFFIDAVIT IN SUPPORT

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7. In her Affidavit in Support of her Caveat, Purnima alleges that this Will is forged, fabricated and unnatural.6 She takes these grounds:

"(a) Purnima says that the name on the Will is 'Jaswantbhai Natwarlal Jolia' and not 'Jaswantlal Natwarlal Jolia', which was his 'real' name. She claims he was never known as Jaswantlbhai. The Defendant also relies on the death certificate,7 bank account details8 and certain share certificates9 to substantiate her claim.
(b) Purnima claims that Jaswantlal's signature was obtained on a blank paper; the Will had been drawn thereafter and that the signature itself is of Jaswantlal Jolia and not Jaswantbhai Jolia.
(c) Purnima alleges that Asit coerced Jaswantlal into signing the Will;
(d) Finally, Purnima sets up an affirmative case that Jaswantlal always treated Purnima as his own daughter and, therefore, he would have confided in her and brought to her notice his intention to create a Will.

8. Mrs. R.P. Sondurbaldota J framed and settled issues on 1st March 2012.10 On 1st September 2016, I framed an additional issue, parties having agreed. The final issues are set out below with my findings against each.

13. The burden of these two issues is on the Plaintiff. They need to be addressed together. The requirements of a valid unprivileged Will are well known. The testator must be an adult of sound mind.26 He must be shown to have made the Will of his own volition and without any importunity as might rob him of free agency.27 He must sign the Will intending it to be such a document. The execution of the Will must be attested by at least two witnesses. Both need not be present at the same time, but each must have seen the testator sign the Will.28

15. Mr. Damania was cross-examined, though very briefly.30 The very first question put to him was whether this was the first time Mr. Damania had said that Jaswantbhai and Jaswantlal were the same person. The question is itself peculiar;To this, Mr. Damania responded saying that for at least a year prior to his death, the testator could move about and had a good memory.32 Again, this was an answer that ought to have been tested further in cross-examination but was not. It remains uncontroverted.

17. The time frame of these questions is unhelpful. The Will is of 10th August 2002. Jaswantbhai lived for a good two years after, and died on 26th January 2004. The first of the questions about his health relates to a period of four years before 10th August 2002, i.e., about 1998; and that is, therefore, irrelevant. The second is vague when it speaks of 'last days', and in any case is fully met by Mr. Damania's answer, that at least for a year before his demise.

19. To demonstrate testamentary incapacity, Purnima had to show either that Jaswantlal was, on account of his condition of paralytic attacks, never, i.e., at no point in time, in a sufficiently lucid state of mind to make a testamentary instrument, or, alternatively, that on the day in question, 10th August 2002, he was so incapacitated that he could not possibly have made the Will.

20. Though Purnima called very many medical practitioners to give evidence, none of it establishes testamentary incapacity. The only relevant testimony is from DW4, Dr. P. Marfatia.

22. The other doctors contribute nothing to this, and I do not propose to spend further time labouring their evidence. DW2, Dr. Borse, spoke of Jaswantbhai's hospitalization in 1998. That is not denied.

23. There is nothing, I note, to controvert Mr. Damania's evidence of the actual execution and attestation of the Will. As to the second aspect, viz., testamentary capacity, there is no material to indicate that Jaswantbhai lacked it in the slightest on the day he made the Will. The inevitable result is that Issues Nos. 1 and 2 are proved.

26. Now, apart from the Pannaben's unequivocal refutation of the suggestion, what is important is the suggestion implicit in the question. If it is, therefore, shown that Jaswantlal and Jaswantbhai are the same person, then on this case placed by the Defendant herself the Testamentary Suit must succeed; for it admits the execution of the Will but only disputes the identity of the maker of it.

27. Later, Pannaben said that Jaswantlal N. Jolia was the family name or he was so known to the family, but in business circles he was known as Jaswantbhai. This is of some significance, because among Gujaratis, the word 'bhai' is an honorific and a frequently used term of respect. Yet again, there is no follow through on this answer and it remains untested.

28. What follows, however, is as baffling as it is crucial. The Plaintiff was confronted with an undated letter from the testator to the Branch Manager of the Bombay Mercantile Cooperative Bank. This was marked in evidence.

30. Quite apart from these two answers being utterly fatal to the Defendant's case on the question of a difference in identity, it must be noted that in the two printed documents, the letterhead shows the testator's name (and there is no doubt that it was the deceased who signed both) as "Jashwantbhai"; i.e., there is yet another variant in the name, one that is clearly as irrelevant as the difference between Jaswantlal and Jaswantbhai.

31. I turn next to the evidence of DW8, Mr. Chandanmal B. Chhajed, a Chartered Accountant with M/s. C.B. Chhajed & Co. He filed an Affidavit in lieu of Examination-in-Chief,45 and was briefly further examined in chief.46 He claimed to have a photocopy of Ex. D-1, the letter dated 12th March 2001 to him by the deceased. He referred to this letter in his examination-in-chief.

32. This is the last nail in the defence's coffin. The Defendant's own witness deposes that her case, of the two being different, and of the testator never being known as, or using, the name "Jaswantbhai" is untrue. There are other documents that the Defendant put into evidence, too, such as the share certificate at Ex. "D-4",47 admitted by the Defendant to be signed by the deceased and showing his name, written in Gujarati, as 'Jaswantbhai'.

33. The evidence of DW6, DW7 and DW9 carries the matter no further. None knew Jaswantbhai personally, but only in their professional capacity as bank managers at their respective banks. Their testimonies before the Commissioner do not assist the Defendant's case in any way.


34. There is absolutely no substance to the case that the testator was never known as Jaswantbhai but only ever as Jaswantlal. The evidence the Defendant herself led destroys her case as pleaded that the Will was fabricated.

35. On the question of forgery, there is no evidence whatever and, again, the Defendant's own pleadings, admissions in the cross-examination in questions, and on documents falsifies any such case.

36. As to the case on 'undue influence',48 there is no evidence at all. To invalidate a Will, undue influence must be established as a fact. The actual exercise of that undue influence on the testator, and which is in the nature of coercion and fraud, must also be demonstrated.49 It is not enough to show that one person was in a position or had the power to overbear the testator; it must be shown that Will was the result of the exercise of that power.50 Generalized allegations will not do: undue influence is to pleaded with specificity, particularity and precision.51

The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative."

43. The mere fact that some heirs are excluded is not per se evidence of a Will being unnatural; every Will disrupts the ordinary line of succession, and this is obvious.55 Were it otherwise, there would be no need for Wills. As against Purnima's lack of evidence, there is the evidence of Pannaben, elicited in her cross-examination, that her son, Asit, stayed with Jaswantbhai.56 She said she had some proof of this, but not complete proof. This is in sharp contrast to Purnima's case, of which she has no proof at all.

44. Issue No. 3A must, therefore, be answered in the negative.

I. CONCLUSION & ORDER

45. The testamentary jurisdiction is one of caution, not suspicion.57 Where nothing is shown against the reasonable nature of a Will, and there are no suspicious circumstances, the propounder's onus is discharged. On an overall assessment, it seems to me clear from the record that Jaswantbhai, himself childless, was close to Pannaben and her son, and treated her son (Asit) as his own. Issues such as undue influence, coercion, forgery or the Will being unnatural cast the burden not on the propounder, but on he or she who alleges these things.58

46. The suit succeeds, and is decreed with costs. The caveat is dismissed. The Registry will proceed to issue Letters of Administration with Will Annexed in respect of the Will dated 10th August 2002 of Jaswantbhai alias Jaswantlal Natwarlal Jolia.

47. The drawn up decree or order is dispensed with. The Registry is not to raise any objections or requisitions regarding service of citations. Given that the Petition is of 2009, pending for seven years already (and that a probate was first sought even earlier in 2004, i.e., 12 years ago), Letters of Administration with Will Annexed are to be issued no later than by 30th November 2016. For these reasons, and since, too, I have found not a shred of substance in the defence, the application for stay of this order is refused.

48. The registry will act on an authenticated copy of this order.

4Order dated 4th September 2009, following the decision of the Division Bench in Thrity Sam Shroff v Shiraz Byramji Anklesaria, 2007 (4) Mh. L.J. 56. The correctness of this decision has been doubted in the Division Bench decision in Haresh Chetan Thadani v Komal Suresh Chainani, Appeal No. 1 of 2015, decided on 27th January 2015, in appeal from an order I passed on 16th December 2014 allowing a Chamber Summons for conversion of a probate Petition into one for Letters of Administration with Will Annexed. The Division Bench in Thadani held that in Thrity Sam Shroff, the Court's attention had not been drawn to the decision of the Supreme Court in Shambu Prasad Agarwal & Ors. v Bhola Ram Agarwal, (2000) 9 SCC 714. 28Succession Act, Section 63. The Section allows the making of a mark or the signature on behalf of the testator by another and at his direction; each attesting witness must either see the testator sign, make or make another sign the Will or receive a personal acknowledgement of the signature, mark or other person's signature from the testator.

Wednesday, 25 October 2017

Important judgments (20/10/2017)

Important judgments (20/10/2017)

Senior Citizens Act – Scheme of the Act does not contemplate for resolving property disputes between or among members of a family - 2017 (5) KHC 1 (DB)

Campus politics – Political activities like dharna, hunger strikes and other practices like sathyagrah have no place in academic institutions - 2017 (5) KHC 13 (DB)

Co-operative Society – S.4(5) of Payment of Gratuity Act which enables an employee to opt for a better terms of gratuity will prevail over Second Proviso to Rule 59(iii) of Co-operative Societies Rules - 2017 (5) KHC 15 (FB)

Family Courts — If one of the parties desires that the proceedings should be held in camera, Family Court has no option but to so direct - 2017 (5) KHC 48 (SC) 

Rule 5 of Advocates’ Welfare Fund Rules is in conflict with Section 15 of Advocates’ Welfare Fund Act – Court reads down Rule 5 - 2017 (5) KHC 89

Family Courts Act — Once settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed - 2017 (5) KHC 48 (SC)

Answers given in answer to the leading questions put in the examination-in-chief are liable to be discarded - 2017 (5) KHC 75

There can be acquisition of part of building or house - 2017 (5) KHC 1 (SC) (SN)

Constitution of India – Custodial deaths - Supreme Court issues directions in the matter - 2017 (5) KHC 2 (SC) (SN)

IPC S.34 — Principle of vicarious liability enshrined by S.34 extends only to the extent of common intention shared by parties - 2017 (5) KHC 83 (DB)

Senior Citizens Act – A person’s obligation to maintain a senior citizen has nothing to do with prospect of his possessing senior citizen’s property or his succeeding to senior citizen’s estate - 2017 (5) KHC 1 (DB)

Campus politics – In academic institutions, politics or political activities cannot be permitted - 2017 (5) KHC 13 (DB)

Challenge in fixation of fair value of land – Can be raised in appeal before District Collector under Section 45A of Stamp Act - 2017 (5) KHC 24

Canara Bank — Service terminated with punishment of compulsory retirement in the year 1986 – Those retired prior to 29/09/1995 up to 01/01/1986 formed a single homogeneous group and Bank is not justified in extending the benefit of pension retrospectively from 29/09/1995 to 01/01/1986 - 2017 (5) KHC 26 (DB)

Evidence Act, 1872 S.32(1) – Mere suspicion or apprehension in the mind of maker shall not be placed under S.32(1)  - 2017 (5) KHC 35 (DB)

CrPC S.164 — Statement recorded by Magistrate under S.164 can be used only either for corroboration or for contradiction and cannot be accepted as a substantive piece of evidence - 2017 (5) KHC 35 (DB)

Family Courts — In a transfer petition, no direction can be issued for video conferencing - 2017 (5) KHC 48 (SC) 

NI Act S.138 – Mere admission of accused that he issued a signed blank cheque cannot mean that he has admitted to execution of cheque - 2017 (5) KHC 75

Any other Authority other than State Co-operative Election Commission holding election when S.28B of Co-operative Societies Act is in force is null and void - 2017 (5) KHC 79 (DB)

Tuesday, 10 October 2017

How to prove breach of injunction order?

How to prove breach of injunction order?

A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the injunction order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main suit as well as application under Order XXXIX, Rule 2A. C.P.C. will not be proper. In my opinion, the order passed by learned Munsif on 11.12.1989 holding the defendants guilty in Misc. Case No. 67 of 1987 and directing them to be detained in civil prison is liable to be set aside on this ground alone.
Citation : AIR 1998 All 228

IN THE HIGH COURT OF ALLAHABAD
C.M.W.P. No. 682 of 1990
Decided On: 06.02.1998
Gyan Chand Jain and others
Vs.
XIIIth Addl. District and Sessions Judge, Agra and others
Hon'ble Judges/Coram:
G.P. Mathur, J.

1. This petition under Article 226 of the Constitution of India has been filed for quashing the order dated 11.12.1989 of Munsif, Firozabad in Misc. Case No. 67 of 1988 and also the appellate order dated 22.1.1990 of XIIIth Additional District Judge. Agra in Misc. Appeal No. 253 of 1989. With the consent of the parties, the writ petition is disposed of finally at the admission stage.
2. Ram Babu Jain (original respondent No. 3 in the writ petition) filed O.S. No. 227 of 1985 against the petitioners Gyan Chand Jain, Umesh Chand Jain and Padam Chand Jain for injunction restraining the respondents from interfering in their possession in any manner over the ground floor of house No. 35 or causing any damage or throwing any dirty article therein. The case of the plaintiff, in brief, is that the petitioners (defendants) were the owner-landlords of house No. 35 and he was a tenant thereof in the ground floor. The plaintiff had been paying rent to the defendants regularly but they wanted to evict him forcibly and in an unlawful manner and with that end in view, they were causing damage to the property and throwing dirty articles in the tenanted portion. The plaintiff moved an injunction application 7C on which the learned Munsif passed ex parte injunction order on 4.11.1985 directing the defendants to maintain status quo on the spot, not to demolish any portion of the property and not to interfere in the plaintiffs possession except in accordance with law. While passing this order, the learned Munsif fixed 3.12.1985 for appearance of the defendants and the injunction order was directed to be operative till that date. It appears that this injunction order was extended on 3.12.1985. The plaintiff moved an application sometime in the year 1987 under Order XXXIX, Rule 2A, C.P.C. alleging that the defendants had demolished a portion of the roof and the drainage pipe and thereby committed breach of the injunction order. This application was registered as Misc. Case No. 67 of 1987. The plaintiff moved two other similar applications under Order XXXIX, Rule 2A. C.P.C. alleging that the defendants had committed breach of the Injunction order and they were registered as Misc. Case No. 68 of 1987 and Misc. Case No. 6 of 1989. After recording the evidence adduced by the parties, the learned Munsif decreed the suit and passed a decree for injunction against the defendants. He also held the defendants guilty under Order XXXIX, Rule 2A, C.P.C. in Misc. Case No. 67 of 1987 and directed that each of the defendants be detained in civil prison for a period of one month. Similarly in Misc. Case No. 68 of 1987, each of the defendants were ordered to be detained in civil prison for a period of two months and in Misc. Case No. 6 of 1989 each of the defendants were directed to be detained for a period of three months. Aggrieved by the aforesaid order dated 11.12.19891 of the learned Munsif, the defendants filed a regular First Appeal under Section 96, C.P.C. and three Misc. Appeals under Order XLII1. Rule 1 (r), C.P.C. The Misc. Appeal against the order of learned Munsif passed in Misc. Case No. 67 of 1987 which was registered as Misc. Civil Appeal No. 253 of 1989 was dismissed on 22.1.1990 which is the subject-matter of challenge in the present writ petition. The other two Misc. Appeals which were preferred against the order of learned Munsif passed in Misc. Case No. 68 of 1987 and Misc. Case No. 6 of 1989 were allowed and the order directing the defendants to be detained in civil prison for a period of two months and three months respectively was set aside.
3. 1 have heard Sri G. R, Jain for the petitioners, Sri S. Harkauli for the contesting-respondents and have examined the record.
4. Sri Jain, learned counsel, for the petitioners has submitted that the procedure adopted by the learned Munsif in deciding the suit as well as the Misc. cases under Order XXXIX, Rule 2A, C.P.C. by one composite order is illegal and therefore, the order directing the defendants to be detained in the civil prison is liable to be set aside. The judgment of the learned Munsif dated 11.12.1989 shows that he decided the main Suit being O.S. No. 227 of 1985 as well as three Misc. cases namely 67/87. 68/87 and 6 of 1989 by one composite order. The controversies raised in the Suit and that in the Misc. cases registered on the basis of the applications moved by the plaintiff under Order XXXIX. Rule 2A. C.P.C. is entirely different. The question for determination in the Suit was as to whether the plaintiff Ram Babu Jain was entitled to a decree for injunction in his favour on the ground that he was a tenant of ground floor of house No. 35, while the question for determination in Misc. Case No. 67 of 1987 was whether the defendants had committed disobedience of an injunction order granted under Order XXXIX, Rule (1) or (2). C.P.C. or breach of any of the terms on which the injunction was granted or the order was made. The controversy raised in the two proceedings though with regard to the same property was not identical. According to the plaintiff, the ex parte injunction order dated 4.11.1985 was to remain in operation till 19.12.1985 as the same had been extended upto the said date by the order dated 3.12.1985 but the defendants broke a portion of the roof and the drainage pipe on 14.12.1985. It may be noticed that the defendants are themselves the owners of the property and were residing on the first floor. The question to be considered in this case was whether the defendants had knowledge of the ex parts injunction order and whether they deliberately committed disobedience of the injunction order. The plaintiff did not lead any evidence in Misc. Case No. 67 of 1987. The judgment of the lower appellate court shows that some application was moved wherein a prayer was made that all the three Misc. cases should be heard along with the main suit and this application was allowed on 5.1.1988. In my opinion, the mere fact that an order was passed to hear the Misc. cases along with the main suit would not mean that the Misc. Cases should be decided on the basis of the evidence which had been recorded in the main Suit and by the same order. A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the injunction order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main suit as well as application under Order XXXIX, Rule 2A. C.P.C. will not be proper. In my opinion, the order passed by learned Munsif on 11.12.1989 holding the defendants guilty in Misc. Case No. 67 of 1987 and directing them to be detained in civil prison is liable to be set aside on this ground alone.
5. For the reasons mentioned above, the writ petition is allowed and the orders dated 11.12.1989 of the learned Munsif passed in Misc. Case No. 67 of 1987 and also the Order dated 22.1.1990 of XIIIth Additional District Judge in Misc. Appeal No. 253 of 1989 are quashed. Parties shall bear their own costs.