പന്ത്രണ്ട് വയസിനു താഴെ പ്രായമുള്ള പെൺകുട്ടികളെ പീഡിപ്പിക്കുന്നവർക്ക് വധശിക്ഷ; മധ്യപ്രദേശ്, രാജസ്ഥാൻ സംസ്ഥാനങ്ങൾക്ക് പിന്നാലെ ഹരിയാനയിലും ബില്ലിന് അംഗീകാരം; ബിൽ അംഗീകരിച്ചത് ഇന്ത്യൻ പീനൽ കോഡിലെ വകുപ്പുകൾ ഭേദഗതി ചെയ്ത്.http://www.marunadanmalayali.com/
Thursday, 15 March 2018
NO PROPERTY SALE ON POWER OF ATTORNEY: SUPREME COURT
No property sale on power of attorney: Supreme Court
Property sales through the common practice of general power of attorney (GPA) will not give ownership title to the buyer.
In a landmark judgment that is expected to send a large number of property owners into a tizzy, the Supreme Court held that the GPA method of immovable property sales is not a valid form of transfer of property.
A three-judge bench presided over by Justice R. V. Raveendran said that property can be lawfully transferred only through registered sale deeds.
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property," the bench said, after interpreting various provisions of the law concerning property sales. However, the bench said the judgment will not affect "genuine transactions" under the GPA.
The judgment delivered on Wednesday would have an impact on both freehold and leasehold properties and affect the mode of transfer of property in Delhi and the National Capital Region (NCR) where GPA sales are very common. Even though it can cause some hardship to those who have already purchased property through the GPA, the order will help curb evasion of duties, flow of black money into real estate and also save people from being cheated by unscrupulous owners selling the same property to several people.
Navin Raheja, chairman and managing director of Raheja Developers said, "The court's decision will help to curb the circulation of black money to some extent in the real estate sector where titles are manipulated. Besides, many property transactions where prices are rounded off will be affected. However, overall there won't be any significant impact on normal property sales."
The apex court said there can be no mutation of property in municipal and revenue records on the basis of such documents. The bench, however, clarified that its order should not be a ground for disturbing mutations already effected by the Delhi Development Authority (DDA) or any other authority.
But, there is little relief for thousands of people who hold property without mutation as GPA sales can only be treated as existing sale agreements. An application of the order with prospective effect would have protected their interest. The court, though, stressed that it had merely reiterated the well- settled legal position that such transactions cannot be treated as completed transfers.
The court could not make the order applicable with prospective effect as it had not laid down any new law. However, it said that those who had already bought property through GPA before its judgment could use the documents to apply for regularisation of allotments and leases by development authorities. "Nothing prevents affected parties from getting registered deeds of conveyance to complete their title. The said transactions may also be used to obtain specific performance or to defend possession under section 53A of TP (Transfer of Property) Act," the court said.
In order to ensure that GPA continues to serve its purpose, the court said its judgment will not affect the validity of sale agreements and powers of attorney executed in genuine transactions. "For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance."
The court further said that a person can enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings. In that connection he can execute an agreement of sale and grant a power of attorney that will allow the developer to further sell the property to prospective purchasers.
While hearing a matter on the subject, the court had decided to clarify the law on the issue as such transfers had not only led to evasion of stamp duty and registration charges but had also provided scope for investing black money in real estate. Besides, such transfers were giving nightmares to bona fide purchasers as the same property could be sold to several people in the absence of verification or certification of title. A proper verification of ownership was possible only if all property were transferred through registered sale deeds.
Noting that such transactions were now not just limited to Delhi but had spread to neighbouring areas, the court had sought the views of the Centre and the states of Delhi, Haryana, Punjab and Uttar Pradesh. There was a near unanimity that such transactions should be discouraged as it caused loss of revenue and increased litigation due to defective titles.
Going into the legality of such transfers, the court said any contract of sale which was not a registered sale deed would fall short of the requirements of the relevant provisions of the Transfer of Property Act and could not confer any title. The court said a transfer of property by way of sale could only be by a sale deed. "In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred," the bench said.
Thursday, 8 March 2018
Rent Act Book Chapters
Friends I invite the author in you to write articles in my book Tenanted Premises under Rent Act.
Selected articles may be published with the contributors name and photograph. Some of the chapters in the book may be as under.
Feel free to suggest other chapters in the book.
Your suggestions with regards to the book maybe communicated to me
Adv. Vinod Sampat
@ Address Adv Vinod Sampat
A 901 Sheetalnath Tower, Sudha Park, Vallabh Baugh Lane Ext., Ghatkopar East, Mumbai 400 077 Mob. 7021919950 / 9987622225./ off 2506 2175 / 25062176. Email email@example.com It's very near to Eastern Express Highway and SCLR. Refer Google Maps.
Some of the chapters in the book may be as under
a. Different Redevelopment Schemes
b. Salient Features of each Scheme
c. Comparative Analysis of Each Scheme
d. Legality of Tenants Association
Precautions to be taken
a.Precautions during Redevelopment
b1. Income Tax
d. Submission of plan
f. Appointment of PMC
g1. For Landlord
g2. Checklist for Tenant
h. Restrictions with regards to Transfer of Tenancy
i. Sec. 95A of Mhada
j. Mischiefs done by Landlord
k.Mischief done by Tenants
l Irrevocable Consent of Tenant to be submitted to Mhada
m. Time limit within which building has to be constructed
n. Precautions before Taking Possession of Constructed Building.
a. Occupation Certificate
b. Building Completion Certificate.
c. Past liabilities
d. Details of Ongoing Contracts
e. Documents to be collected from Builder
f. Formation of Co-operative Society
g. Conveyance of Co operative Society.
Specimen Court Petitions
a1.Premises not vacated by some tenants
a2. Tenancy not being transferred by Landlord
a3. Disputes amongst Occupants
a4. Application for Standard Rent
Landmark Court Judgments
Rent not being Paid
Unauthorised Changes in Flat
a. Standard Rent
b. Permitted Increases
c.Death of Tenant
Procedure for Transfer of Tenancy
d. Permission from Charity Commissioner
e. Demise of Tenant during Redevelopment
f. Tenancy vs Will
g. Can Tenant sell premises without Landlords Consent
h. Induction of Third Party by Tenant
i. Gratuitous Licencee
j. Dispute Amongst Landlord whom to pay Rent.
k. Repairs of Tenanted Premises
l. Permitted Changes in tenanted premises by tenant
m. Rights of Landlord
n. Right of Tenant
o. Right to Information
p. Stages in a court case
q. Time taken in a court case
r. Different types of cases filed in Small Causes Court
s. Right of Aggrieved Party to Appeal
t. Time Taken in Appeal
u. Consent Term
v. Precautions when premises are sub letter with landlords consent
w. Transfer of Tenancy
x. Registration of Tenancy Agreement
y. Stamp Duty on Transfer of Tenancy
z. Consideration to be paid for transfer of Tenancy
z1. Keeping Tenanted premises locked
z2. Purchase of Additional Premises by Tenant
z3. Minimum size of premises
Precautions to be taken by Landlord
For Residential Premises Tenants
For Commercial Premises Tenants
Precautions to be taken by Tenant
Rights of Senior Citizens in Tenanted Property
Rera Rules & Regulations
BMC & Unauthorised Construction
Saturday, 2 December 2017
The Registration Act, 1908 - Sec. 69 - *Whether Sub Registrar or Registrar General can cancel registration of a registered document?
✍The Registration Act, 1908 - Sec. 69 - *Whether Sub Registrar or Registrar General can cancel registration of a registered document?*
✍ *Held:* There is no express provision in the Act of 1908 which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration, the power of the Inspector General is limited to do superintendence of registration offices and make Rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.
Satya Pal Anand
State Of M.P. And Others
*(2016) 10 SCC 767*
Friday, 1 December 2017
What will be effect if date of accrual of cause of action is inaccurately mentioned in plaint?
We have considered the submissions made on either side. According to Order 7 Rule 1 C. P. C. the plaint is required to contain vide clause (e) the facts constituting the cause of action and when it arose. What is the proper cause of action, must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in mentioning the date when the cause of action arose cannot be over emphasised in isolation of context. A plaintiff need not be considered bound by the statement regarding the date of accrual of the cause of action.
Civil Procedure Code - Order 7 Rule 1--Cause of action--Inaccuracy in mentioning date of cause of action--effect of.
What is the proper cause of action must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in mentioning the date when the cause of action arose cannot be over emphasised in isolation of context. A plaintiff need not be considered bound by the statement regarding the date of accrual of the cause of action. This may be determined or inferred from the facts stated.
Rajasthan High Court
Jethmal vs Hiralal And Ors. on 21 September, 1971
Equivalent citations: AIR 1972 Raj 220, 1971 (4) WLN 472
Bench: J Narayan, Chhangani
1. This is a special appeal by leave under Section 18 (2) of the Raiasthan High Court Ordinance 1949, against a decree of a learned single Judge of this Court dated 13th May, 1966 passed in S. B. Civil Second Appeal No. 748 of 1960. By this decree the learned single Judge accepted the appeal of the plaintiff-respondent Hiralal and reversed the iudgment and decree passed by the first appellate Court on 27th August 1960 against Himmatram defendant and restored the trial Court's decree against Jethmal defendent. The learned single Judge, however, maintained the dismissal of the suit against the defendant respondent Ratanlal.
2. The facts relevant for the disposal of the appeal may be stated at the outset.
3. The plaintiff respondent Hiralal instituted a suit for the recovery of Rs. 6,215/- in the Court of the District Judge, Jodhpur, against the three defendants, namelv. Ratanlal (respendent No. 2) Jethmal (appellant) and Himmatram (respondent No. 3). The suit was. however, transferred to the Court of Civil Judge. Jodhpur. The case as set out in the plaint is as follows:--
4. The plaintiff advanced monev to the defendant Himmatram for the purchase of a house from time to time. The money advanced totalled Rs. 8,000/-. The defendant Himmatram. however did not purchase the house. The plaintiff thereupon demanded the repayment of the monev lent to him. Himmatram informed him that he had invested the money in the Motor Exchange Company a partnership firm, in whose name and style the defendants Ratanlal and Jethmal carried on business as partners. The defendant Himmatram. however, executed a 'Rukka' in the sum of Rs. 8,000/- in favour of the plaintiff. The plaintiff subsequently requiring money for building a house demanded the repayment. The defendant Himmatram came forward with a case of repayment of Rs. 2,000/- The plaintiff denied having received Rs. 2,000/- The defendants Nos. 1 and 2 Ratanlal and Jethmal got involved in the controversy and proposed to the plaintiff that if the (plaintiff) abandoned his claim for the amount of Rs. 2,000/- and agreed not to file a suit against the defendant Himmatram they would Day Rs. 6,000/- to him. The plaintiff at the instance of the defendants Nos. 1 & 2 gave up the claim for Rs. 2,000/ and agreed to accept Rs. 6000/- from them (defendants Nos. 1 & 2). Particulars of the date and time in connection with this arrangement have not been given but it appears that this must have taken place sometime before 6th March. 1949. The plaintiff's further case is that on 6th March, 1949 he went to the defendants Nos. 1 & 2 for obtaining payment of Rs. 6,000/-.
The defendants Nos. 1 & 2 informed him that they could not arrange for the money. They, however, proposed to give to the plaintiff a post-dated cheque in the amount of Rs. 6,000/-, which was to be drawn from the joint account of the defendants Nos. 1 & 2 in the Jaipur Bank. The plaintiff having agreed, they gave him cheque No. 06319 dated 6-4-49 drawn by Jethmal. The plaintiff sent this cheque to his aeent but it was not honoured by the Jaipur Bank and consequently, the plaintiff's agent sent the cheque back to him. The plaintiff then served a telegraphic notice upon the defendants Nos. 1 ,& 2 and failing to get the amount, he filed a suit for Rs. 6,000/- by wav of principal and Rs. 215/- as interest. The plaintiff also impleaded Himmatram as defendant No. 3 although he did not state expressly that Himmatram continued to be liable under the original Rukka. He also did not state how Himmatram continued to be liable in respect of the plaintiff's agreement with the defendants Nos. 1 & 2 and the issue of the cheque by the defendant No. 2 Jethmal in his favour.
5. The defendants filed separate written statements. Ratanlal defendant denied that there was anv partnership business in the Motor Exchange Company between him and the defendant Jethmal or that there was any partnership business with the defendant Himmatram. He denied the averments made in the plaint and pleaded that he was not aware of anything that might have been done by the defendant No. 2 Jethmal. He admitted that there was ioint account of himself and Jethmal in the Jaipur Bank, but pleaded that he could not be held liable simply on that account. He alternatively pleaded that even if he be held as a partner of Jethmal defendant, he could not be held liable as Jethmal exceeded his powers as a partner. Jethmal defendant admitted his partnership with Ratanlal in the Motor Exchange Company. He further admitted having drawn the cheque and handed over the same to the plaintiff but denied the plaintiff's case as to the circumstances in which the cheque was given to the plaintiff. He came forward with the counter version. According to him. the plaintiff had to send money to his agent and as he had no bank account, he approached the defendant No. 1 Ratanlal to give him a postdated cheque which he would send to his agent and that he would arrange for the amount and deposit it in the account of the defendant No. 1.
The defendant No. 1 was related to the plaintiff and, therefore, he accepted the proposal of the plaintiff. As the defendant No. 2 was carrying on business of partnership with the defendent No. 1 he Save a cheque in the ioint account under instructions from the defendant No. 1. The defendant No. 3 Himmatram admitted to have received advances amounting to Rs. 8,000/- but denied having invested the monev in the Motor Exchange Company. He pleaded that the amount of Rs. 2,000/- had been paid to the plaintiff and that the claim for that amount was not abandoned. He also denied that the defendants Nos. 1 and 2 undertook to pay Rs. 6,000/-. He supported the version of the defendant No. 2 in connection with the drawing of the cheque by Jethmal defendant No. 2. He also pleaded that the plaint did not disclose cause of action against him. He further prayed that in case a decree is passed against him. it should be made payable by instalments. The trial Court framed the following issues:--
"1. Whether Ratanlal defendant Not Is liable to pav the amount entered in the cheaue which was the basis of the suit?
2. Is the plaintiff entitled to interest and. if so. to what extent?"
3. Is the cheaue (which forms the basis of the suit) without consideration?
4. Is defendant No. 3 not in a position to pay the amount in one instalment and is it necessary to fix instalments that reason for the payment of the decree.
The trial Judge held that Himmatram defendant stood discharged as a result of what took place between the parties on 6-3-49. He. however, passed a decree for Rs. 6,000/- against Ratanlal and Jethmal holding that the cheque was for consideration and Ratanlal was liable on the basis of the cheque signed by the defendant No. 2 Jethmal as the defendants Nos. 1 & 2 Ratanlal and Jethmal were partners and the cheaue was given in the joint account by the defendant No. 2 Jethmal to the plaintiff in the presence of the defendant No. 1 Ratanlal. The trial Judge also referred to the reply sent by Ratanlal to the telegraphic notice in which Ratanlal admitted having handed over the cheque to the plaintiff on behalf of the partnership firm.
6. The defendant No. 2 Jethmal did not file an appeal. The defendant No. 1. Ratanlal. however, preferred an appeal in the Court of the District Judge. Jodhpur and the plaintiff filed cross-objection regarding interest and costs. The lower appellate court did not agree with the finding of the trial Court that there was a novation of contract and held that a finding of novation could not be possibly arrived at and gave the following reasons in support of its conclusion:
1. That no plea of novation was taken in the plaint.
2. That the question of novation is a question of fact but no issue was framed about it.
3. That the plaintiff filed an application on 4-8-51 under Order 6 Rule 7 CPC to amend the plaint by the addition of plea that the cause of action arose on December 28. 1947 and April 6. 1949 and in this manner sought to base his claim on the original rukka Ex. P. 3.
Thus he not only did not plead novation but stoutly resisted such a plea. The lower appellate Court also repelled the plaintiff's case that the giving of a cheque should be treated as resulting into a contract of guarantee. He. therefore, allowed the appeal and dismissed the suit not only against Ratanlal but also against Jethmal. Acting under Order 41 Rule 33 CPC he decreed the suit against Himmatram. Hiralal's cross oblections were dismissed. Hiralal then filed second appeal in this Court. The learned single Judge referred to the plaint allegations that the defendants Nos. 1 & 2 had agreed to pay Rs 6,000/- to the plaintiff if he relinquished his claim for Rs. 2,000/- from his claim for Rs. 8,000/- against Himmatram and also did not sue him and that it was in pursuance of such an agreement that the cheque (Ex. P. 1) was handed over to the plaintiff on 6-3-49. The learned Single Judge also referred to the defendants' contention that, according to the accounts Ex. P. W. 5/1. the amount of Rs. 2,000/-has alreadv been paid by Himmatram to the plaintiff even before the original rukka. The learned single Judge did not go into the controversy relating to the alleged relinquishment of claim for Rs. 2,000/- but observed that "vet it cannot be denied that Himmatram was liable to pay at least Rs. 6,000/- to the plaintiff." The learned single Judge then noticed a number of cases namely. Fullerton v. Provincial Bank of Ireland 1903 AC 309 Srinivasa Raghava Aivangar v. K. R. Ranganatha Aivangar 36 Mad LJ 618 = (AIR 1919 Mad 528) and Oliver v. Davis 1949-2 All ER 353 and deduced the following principle:--
"Forbearance to sue is a question of fact to be decided on the evidence on the record and circumstances of a case may sometimes furnish surer ground for holding in favour of the plaintiff."
He distinguished Oliver's case. 1949-2 All ER 353 on facts and observed as follows:--
"In the circumstances of the present case, it was at the instance of Jethmal and Ratanlal that the plaintiff had forborne sue the defendant or had at least forborne to sue defendant Himmatram till the date of honouring the cheque arrived."
The learned Judge then dealt with the controversy "whether the plaintiff had agreed not to sue Himmatram for ever which, in other words, amounts to saving whether he discharged Himmatram altogether from liability as soon as he received the cheque from Jethmal". and after scrutinising evidence on record recorded a conclusion in these words:--
"I find that the plaintiff while adducing evidence had taken the attitude that Himmatram stood discharged of his old liability and it was not only merely a temporary forbearance which was promised to him. This is also the stand taken by the learned counsel for the plaintiff-appellant in this Court. In this view of the matter Section 62 of the Indian Contract Act which relates to novation of contract need not therefore be discussed at length."
Then remarking that the observation of the lower appellate Court "that novation is not consistent with the original debtor remaining liable in anv form is true only to the extent that no liability can be attached to the original debtor under the old contract, the learned lower appellate Court eventually held that so far as Jethmal is concerned, the cheque being with consideration, he cannot be exonerated. Considering the case of Ratanlal. the learned single Judge treating the suit as based upon cheque a negotiable instrument examined at leangth the provisions of the Partnership Act governing the firms liability for acts done by the partners in their capacity as implied agents and the special Provisions of the Negotiable Instruments Act, particularly Section 27, and stated the Principle as follows:--
"When a suit has been filed on the basis of a negotiable instrument, the rights and liabilities of the parties are governed by the special provisions of the Negotiable Instruments Act and if any of the Provisions of the Partnership Act or Contract Act are in conflict, the provi-sions contained in the Negotiable Instruments Act must prevail. What Section 27 of that Act says is that if a duly authorised agent has acted in the name of the Principal, the Principal is liable on the instrument; it must be plain that the agent was acting in the name of the Principal", The learned Judge then noticed a number of cases in support of this proposition and eventually observed.
"Thus, when a suit is based only on the Negotiable Instruments Act. it is the instrument only which can be looked into for determining the rights and liabilities of the parties"
The learned Judge expressed his reluctance to treat the reference to the ioint account as sufficient to hold that "on the face of it Ex, P/l was made by Jethmal defendant on behalf of the firm." Observing further that the contents of the instrument must show that the agent has signed for the principal he refused to consider the circumstances of the case and evidence on record to establish that Jethmal had made the cheque on behalf of the firm, and in doing so. relied upon a number of cases. In the end. the learned Judge concluded.
"As a result of the aforesaid discussion, I am of the opinion that no liability is cast on Ratanlal on the basis of the cheque."
Examining the case of Himmatram. the learned Judge held that the lower appellate Court could not have decreed the suit against Himnoatram without examining the plea that his liability was extinguished simply on the statement made by him under Order X. Rule 1 CPC." The learned Judge therefore, accepted the plaintiff's appeal, set aside the decree against Himmatram and granted decree against Jethmal and maintained the dismissal of the suit against Ratanlal. Jethmal has filed the present appeal.
7. We have heard Mr. Hastimal for the appellant. Mr. Hastimal prayed alternatively that a decree should at any rate be passed against Ratanlal. Also we heard Mr. H, C. Jain for Ratanlal. We did not call upon Mr. Rule C. Jain who appeared for the plaintiff-respondent.
8. Arguing with reference to Issue No. 3 of the point of absence of consideration for cheaue. Mr. Hastimal contended that there was no valid novation of the contract extinguishing Himmatram's liability under the old contract evidenced by 'Rukka' dated 28-12-1947. He in this connection, emphasised the plaintiff's claim. It was also contended that the finding of the learned District Judge that there was no novation was a finding of fact and was binding in second appeal and the learned single Judge was not justified in interfering with the finding of the learned District Judge.
9. We have given our careful consideration to the submissions and are unable to accept them. We must at once state that the only finding of facts are that Ratanlal and Jethmal agreed to give a post-dated cheque and gave a cheaue in consideration of the plaintiff Hiralal's forbearance to sue Himmatram and discharging him from liability. (We need not express any opinion in connection with Hiralal's agreement to relinquish claim to! the extent of Rs. 2,000/-). This finding of fact is binding but the further question whether the facts found resulted in novation of contract is not a pure question of fact but is a mixed question of law and fact, and there was nothing to prevent the learned Single Judge from examining this question in second appeal and reaching his own conclusion. We are also of the opinion that the conclusion reached by him that there was a novation of the contract cannot be taken exception to and, we are in complete agreement with this conclusion. An analysis of the plaint shows' that sometime before 6/3/49 the defendants Nos. 1 & 2 proposed to the plaintiff that he should give up his claim for Rs. 2,000/- and should forbear to sue Himmatram and that in consideration of thLs they agreed to pay Rs. 6,000/~. The plaintiff agreed and the contract was completed. Later on, on 6/3/49. in pursuance of this' contract, the plaintiff approached defendants Nos. 1 & 2 and on that occasion they agreed to give him the cheque. On these facts there can be no doubt that a contract was created between the plaintiff and defendants Nos. 1 & 2 in consequences of which Himmatram's liability was discharged. It is true that the plaintiff in his suit impleaded Himmatram as defendant along with defendants Nos. 1 & 2. But this subsequent conduct of the plaintiff cannot have any relevance and bearing on the nature of the initial contract entered into by him with the defendants Nos. 1 & 2. In a case of completed contract the plaintiff could not be permitted uni-laterally to invalidate or alter the contract and to revive the liability which had I once been extinguished.
Before the learned single Judge the counsel for the plaintiff candidly stated that in fact the arrangement which was arrived at the time of the taking of the cheque was that the plaintiff had given Complete discharge to Himmatram in receipt of his liability of Rs. 6,000/-. He has also stated that the evidence produced by the plaintiff also supported that conclusion. He. however, explained that the plaintiff either through ignorance of his legal rights or through foolishness sued Himmatram and persisted in obtaining Borne relief against him. The learned counsel also contended that he might have taken in view that after the cheque was dishonoured the liability of Himmatram revived. Approving the argument of the counsel for the plaintiff, the learned Judge rightly remarked that the lower appellate court took a more grave view of the attitude of the plaintiff and "has laid too much emphasis on these circumstances which cannot be taken to be of such consequence as to refuse the plaintiff a decree against defendants Nos. 1 & 2 if he is otherwise entitled to get it on the true appreciation of the nature of the con-'tract."
We are in entire agreement with the view taken by the learned single Judge, that there was valid novation of contract under which the defendants Nos. 1 & 2 took liability of Himmatram'.s debt due to the plaintiff. In this view of the matter, there could be no question of the contract being one of guarantee. The" learned counsel made some arguments in this behalf but these arguments need not be noticed.
10. Another line of reasoning adopted by Mr. Hastimal to repudiate Jethmal's liability was that the arrangement between the plaintiff neither resulted in a case of novation nor in a case of surety but resulted in a conditional contract creating mutual reciprocal promises. Under the contract, the plaintiff had made a promise not to sue Himmatram. As he did not keep up his promise and sued Himmatram he could not sue the defendants Nos. 1 & 2. Reliance was placed in this connection upon Royal Bank of Canada v. Joseph Salvatori (AIR 1927 PC 272). In that case a contract of guarantee provided.
"In consideration of the Royal Bank of Canada, agreeing to continue to deal with Antoni Brothers, herein referred to as the business as a Bank the undersigned hereby jointly and severally guarantee payment to the Bank of the liabilities which the customer has incurred or is under or may incur or be under the Bank, whether arising from dealing between the Bank and the customer or from other dealings by which the Bank may become in any manner whatsoever a creditor of the customer. The Bank failed to perform their covenant in that thev did not continue to deal with the firm as their cus-
tomer in the way of their business as a Bank."
On these facts it was held.
"that the guatantor also was not bound to perform that covenant by reason of this failure of the Bank."
The facts of this case are distinguishable and the principles of this case cannot apply to the facts of the present case. The contract between the plaintiff and the defendants Nos. 1 & 2 properly construed amounts to this that the defendants Nos. 1 & 2 took liability for Himmatram's debt and that Himmatram's liability was discharged. It will not be proper to treat the arrangement between defendants Nos. 1 & 2 as implying that the plaintiff undertook a reciprocal promise to do something in future. In consideration of the plaintiff discharging the liability of Himmatram the defendant became liable to the plantiff. The subsequent conduct of the plaintiff at the best is only an attempt to disregard the legal implication of the contract but cannot be treated as a failure to perform a reciprocal promise. The contention in this behalf is negatived.)
11. Next, it was contended that the consideration for the promise of the defendants Nos. 1 & 2 to pay Rs. 6,000/-to the plaintiff and the giving of a cheque in pursuance thereof was in lieu of the plaintiff's agreement to forbear to sue Himmatram. As the plaintiff subsequently sued Himmatram it brought about a failure of consideration and consequently. the plaintiff cannot enforce liability under the agreement and the cheque against defendants Nos. 1 & 2. This argument is also equally untenable. It cannot be denied that in spite of his initial demand of repayment from Himmatram he did not sue him but agreed to accept Rs. 6,000/-from defendants Nos. 1 & 2. He also obtained a postdated cheque from them. The cheque being dishonoured, he served notice on defendants Nos. 1 & 2 and thereafter sued them. It is true that while sujng them he also impleaded the defendant Himmatram. There was a completed contract between the plaintiff and the defendants Nos. 1 & 2 under which Himmatram's liability was extinguished. The impleading of Himmatram in the suit against defendants Nos. 1 & 2 cannot bring about a failure of consideration so far as the defendants Nos. 1 & 2 are concerned.
12. No other argument was made on this aspect of the case.
13 In the alternative. Mr. Hastimal argued that if he is held liable under the arrangement made between the plaintiff and defendants Nos. 1 & 2 the defendant Ratanlal should also be held liable and that the decree of the learned single Judge be modified and a decree be passed against Ratanlal also in order to do complete iustice to the parties. He relied upon the provisions of Order 41 Rule 33 C. P. C.
Arguing on merits, he contended that the learned single Judge exonerated Ratanlal on wrong assumption that the plaintiff's suit was based merely upon a cheque. It was contended that thp plaintiff's suit was not based upon the cheque but was based upon an oral agreement entered into between the plaintiff and the defendants Nos. 1 & 2. He invited our attention to paras 4 and 5 of the plaint to show that the plaintiff referred to an oral argeement between the plaintiff and defendants Nos. 1 & 2 under which defendants Nos. 1 & 2 undertook liability for payment of Rs. 6,000/- to them. In para 5. the plaintiff stated having approached the defendants Nos. 1 & 2 to obtain payment of' Rs. 6000/- in pursuance of an agreement referred to in para 4. It was vehemently contended that in the face of these averments it was hardly proper to hold that the suit was based upon the checiue a negotiable instrument.
14. In answer. Mr. Jain referred to para 8 of the plaint wherein it was stated that the cause of action arosp on 6-4-49 He also emphasised that the plaintiff claimed interest with effect from 6-4-49.
15. We have considered the submissions made on either side. According to Order 7 Rule 1 C. P. C. the plaint is required to contain vide clause (el the facts constituting the cause of action and when it arose. What is the proper cause of action, must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in mentioning the date when the cause of action arose cannot be overemphasised in isolation of context. A plaintiff need not be considered bound by the statement regarding the date of accrual of the cause of action. This may be determined or inferred from the facts stated. On a careful analysis of the allegations in the plaint we have no doubt that the plaintiff's suit is based upon an oral agreement between the plaintiff and the defendants Nos. 1 & 2. under which the defendants Nos. 1 & 2 undertook liability for Himmatram for the debt due to the plaintiff and got Himmatram's liability discharged. The delivery of the cheque was a later act in pursuance of the undertaking. This is abundantly clear from the averments made in the plaint.
It is true that an issue as to the absence of consideration was framed only in connection with the cheque but it is clear from the record that the parties were aware of the real controversy touching the agreement between, the plaintiff and defendants Nos. 1 & 2 and the giving of the cheque in pursuance thereof. Evidence has been led and findings recorded with regard to the agreement. In these circumstances, we are of the opinion the the plaintiff's suit is not based merely upon cheque. The learned single Judge discussed the law and stated the principle in connection with the firm's liability for a negotiable instrument issued by a partner in a case brought on the basis of the negotiable instrument. We have no quarrel with the view of law taken by him. The suit, however, having not been treated by as being based upon checiue but the agreement the original cause of action, the principles of law laid down by the single Judge have no bearing in the present case.
16. Taking up the question whether the defendant Jethmal can press for a ioint decree asainst Ratanlal to do complete iustice between the parties, Mr. Jain contended that the Power under Order 41 Rule 33 C. P. C. is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross obiection. it must be exercised with care and caution. It was also urged by him that the power conferred by this rule will be confined' to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower Court is rendered necessary in order to adiust rights of the parties according to -justice* equity and good conscience.
17. We do not find force in the submission of Mr. Jain. We need only refer to two cases in support of our view namely, Isri Prasad Singh v. Jaffat Prasad Singh. AIR 1937 Pat 628 and Muniappa v. Dr. C. A. Ramasetty. AIR 1961 Mvs 166. While Isri Prasad Singh's case generally supports a liberal view in resortinff to Order 41 Rule 33 C. P. C. in Muniappa's case the facts are similar to the facts of the present case. In that case, the Court of first instance dismissed the suit against defendant No. 1 but gave the plaintiff decree which he wanted against defendant No. 2. Although the plaintiff did not appeal from that part of the decree by which his suit against defendant No. 1 was dismissed, defendant 2 preferred an appeal from the decree made against him. The lower appellate Court affirmed the decree made against defendant 2 and in the exercise of its powers under Rule 33 of Order XLI of the Code of Civil Procedure it also made decree against defendant 1. The defendant 1 preferred a second appeal in the Mysore High Court. The High Court dismissing the appeal, observed as follows:
"It is clear from the language of Order 41 Rule 33 that if the appellate Court considers that in a particular case, a decree ought to have been made, but has not been made it has clearly the power to make that decree which has not been made by the Court, whose decision is under appeal. If the circumstances of the Case and the interest of iustice demand the variation of the decree in that wav. it is clear that the appellate Court has the power to do so.
Such variation may be necessarv for the purpose of dismissing a suit against persons against whom decrees have been made but which have not been appealed against. Likewise, variation may be necessarv in order to make a decree against a person aeainst whom none has been made but the interest of iustice requires that it should be so made."
We have considered the facts and the circumstances of the case in the light of the above principle. The facts found which are unchallengeable, are that both the defendants Nos. 1 & 2 entered into an agreement with the plaintiff, that a cheque made by Jethmal to be drawn in the joint account of the defendants Nos. I & 2 was given to the plaintiff in the presence of the defendant No. 1 and that the defendant No. 1 admitted having given the cheque in his notice given in reply to the plaintiff's telegraphic notice. The defendant Jethmal's case is that the plaintiff was related to the defendant Katanlal and that he gave the chcaue under instructions from Ratanlal. In these circumstances, it will hardlv be in the interest of iustice that the defendant Jethmal alone should be held responsible under the agreement between the plaintiff and the defendants Nos. 1 & 2. In the interest of complete iustice to the parties, it is necessarv that both thp defendants should be liable for the plaintiff's debt and for that purpose, the suit deserves to be decreed against both of them.
18. Accordingly, we dismiss the defendant's appeal but exercising powers under Order 41' Rule 33 C. P. C. direct that the plaintiff's suit should also stand decreed against defendant Ratanlal. The decree of the learned single Judse is modified and the decree of the trial Court passed against both the defendants is restored.
19. However in the circumstances of the case, we leave the parties to bear their own costs in this Court.
How to prove right of way by easement of prescription ?
A careful perusal of the plaint would show that the plaintiffs
have failed to plead that since what date to which date plaintiffs are
using the land and also failed to plead that they are using the land
for last 30 years against the State/defendant. They have only
pleaded that they are using suit land for last 12 years. The
Supreme Court in the matter of Justiniano Antao and others v.
Bernadette B. Pereira (Smt.) (2005) 1 SCC 471S.A. No. 243 of 2016
, has clearly held that in order to
establish a right by way of prescription, there should be specific
pleading and categorical evidence in general and specifically held
in para 9 of the judgement as under:
“9. We have gone through the three judgments i.e. trial
court, first appellate court and that of the High Court. We
have gone through the evidence adduced. From this, it is
more than clear that there is no specific averment in the
plaint or in the statement of the witnesses showing that this
access from the land of the defendants was used as of right
for the last 20 years. The evidence very categorically shows
that the plaintiff has an access on the south east side and
this was being used by her for a long time. It was pointed
out that only in the year 1984 the plaintiff has started using
the access through the property of the defendants. It is also
admitted that the defendants were during that time on board
of ship and as soon as they came and saw the use of their
land by the plaintiff, they put obstructions to it. Therefore, it
is clear that it is not the case that the plaintiff has been using
the access as of right through the property of the defendants
for more than 20 years. Since the plaintiff has an access
through the southern side of her property we see no reason
why the property of other persons be used as an access to
her house. If the plaintiff had no access to her house except
through that of the property of the defendants then perhaps
we would have considered appreciating as easement of
necessity. But in order to establish a right by way of
prescription one has to show that the incumbent has been
using the land as of right peacefully and openly and without
any interruption for the last 20 years. There should be
categorical pleadings that since what date to which date one
is using the access for the last 20 years. In order to
establish the right of prescription to the detriment of the
other party, one has to aver specific pleadings and
categorical evidence. In the present case, after going
through the pleadings as well as the statement of the
witnesses it is more than clear that the plaintiff has failed to
establish that she has been using the access peacefully,
openly as of right for the last 20 years. More so we find that
material placed on record and especially the photographs
which have been exhibited and marked as Ext. D.W.3/A in
the court that there are two pillars showing the existence of
a gate in southern side but it has been closed down by
rubble stones. The defendants have put up a strong case
that the plaintiff has an opening in the southern side and it is
amply established that there exist two pillars showing the
existence of a gate which has been covered by rubble
stones in the southern side. It was also pleaded that the
plaintiff was using the same and it is only after 1984 she got
the gate constructed through the land of the defendants.
Therefore, on the basis of the evidence and statement of the
witnesses, we are satisfied that the first appellate court has
correctly approached the matter and the view taken by the
High Court as well as the trial court does not appear to be
based on correct appreciation of facts.
5. In the above referred to decision, their Lordships have held
that there should be categorical pleadings that since what date to
which date one is using the access for the last 20 years. In order
to establish an easement by way of prescription to the detriment of
the other party, one has to aver specific pleadings and lead
6. Both the Courts below concurrently held that the plaintiffs
failed to plead and prove the necessary ingredients to establish the
right of easement as required by Section 15 of the Indian
Easement Act and keeping in view the ratio of law laid down by the
Supreme Court in the aforesaid case, the concurrent finding of fact
recorded by both the Courts below is based on evidence available
on record and it is neither perverse nor contrary to the record. No
substantial question of law is involved in this second appeal.
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 243 of 2016
Rajendra Prasad Shukla
State Of Chhattisgarh
Hon'ble Shri Justice Sanjay K. Agrawal
Citation:AIR 2017(NOC) 70 Chhattisgarh
certain circumstances time to file Written statement can be extended beyond 90 days. Written statement w.s filing after 90 days
The Supreme Court of India in the case of Sandeep Thapar Vs. SME Technologies Private Limited, AIR 2014 SC 897 : (2014) 2 SCC 302 : JT 2014 (1) SC 553 : 2014 (1) SCALE 375 held that in certain circumstances time to file Written statement can be extended beyond 90 days.
Written statement w.s filing after 90 days