Useful Judgments (High Court)

Print

  1. A bare reading of Rule 10-A of Order XXII of the Code makes it abundantly clear that the obligation of an advocate is to inform the Court, the death of the party whom he was representing. The said Rule does not cast any obligation upon the advocate of the deceased party to inform the Court of the particulars of the legal representatives of the said party deceased party. Further no penalty and consequence are contemplated under the said Rule in default of any failure to comply with the said Rule 10A of Order XXII of the Code. Thus, I am unable to accept the contention of the appellant that the provisions of Rule 10-A of Order XXII of the Code is mandatory (Also available at [AIR 2015 (NOC) 1304 (Cal)])
  2. It is, therefore, crystal clear that Section 4 of the Partition Act does not provide as a condition for its applicability that the stranger transferee must file a suit for partition. In other words, it is not necessary that he should have filed the suit. He being a defendant could have specifically claimed a share in the residential house. The acid test is whether the stranger purchaser has made a claim for partition of his share [Also available at AIR 2015 CAL 99]
  3. So far as the issue of lack of jurisdiction of the Authority, in invoking Section 126/127 of the Act of 2003, we disagree with the contention of the learned Counsel for the appellant as we are of the view two proceedings are possible for same cause of action of unauthorised use of electricity. Every case of unauthorised use of electricity may not lead to the conclusion that there is theft of energy, however, vice versa is true as every case theft of energy amounts to unauthorised use of electricity also [Also available at AIR 2015 (NOC) 944 (CAL)]
  4. It is elementary that a challenge to an arbitral award is not treated as an appeal and the limited scope of interference does not permit the court to correct an error within the bounds of the arbitrator’s authority, unless the error is apparent on the face of the award and results in manifest miscarriage of justice [Also available at AIR 2015 CAL 304]
  5. In the case of Nivedita Sharma-vs.-Cellular Operators Association of India reported in (2011) 14 SCC 337 the Apex Court held that in view of the statutory alternative remedy of an appeal provided in the Consumer Protection Act, the High Court should not have entertained an application under Article 227 of the Constitution of India [Also available at AIR 2015 (NOC) 823 (CAL)]
  6. In other words, unilateral recognition by an Indian Court of a notarial act done by a foreign notary is impermissible in the absence of reciprocity of recognition as contemplated under section 14 of the Notaries Act, 1952. The reason is, if it is otherwise, the sanctity of the sovereign power being exercised by an Indian Court will be compromised [ Also available at AIR 2015 CAL 54]
  7. It is settled principle of law that in selecting proper guardian of a minor the paramount consideration should be welfare and well- being of the child. In selection of the guardian, the Court is exercising “Parens Patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.” It is a human problem and is required to be solved with human touch [Also available at AIR 2015 CAL 179]
  8. The effect of the revocation of the grant of letters of administration was not to revoke the entire proceeding but only to revoke the actual order granting the letters of administration. The original proceedings in the probate case revived after the order of revocation and it was open to the petitioner after the revocation of the grant to apply for the issue of special citations without filing fresh application for grant of letters of administration [Also available at AIR 2015 CAL 150]
  9. It is clear that the burden of proving that a property held by a member in Mohamedan family is his self acquired property would arise only if the property is held commonly by other members of the family and the entire family lives in commensality possessing the family property in common [Also available at AIR 2015(NOC) 918 (CAL)]
  10. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213 of the Indian Succession Act, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the Will. The vesting of right is enough for the executor to represent the estate in a legal proceeding. The right of action in respect of personal property of the testator vests in the executor on the death of the testator. Sections 211 and 213 of the said Act have different areas of operation. Even if the Will is not probated that does not prevent the vesting of the property of the deceased in the executor and consequently, any right of action to represent the estate of the executor can be initiated even before the grant of probate [Also available at AIR 2015 CAL 27]
  11. Moreover, the mere presence of a Gazetted Officer in the raiding party would not be sufficient compliance of Section 50 of the NDPS Act. The provision under Section 50 of the Act, mandating the presence of either a Gazetted Officer or Magistrate when a body search is conducted, has been incorporated in order to ensure that an independent Gazetted Officer or Magistrate is available so that the raid, the search and the seizure are done in a completely transparent manner and to avoid the possibility of false implication [Also available at 2015 (1) CLJ(CAL) 142] 
  12. The present case is a prosecution under the NDPS Act. Considering the object of the Act extremely stringent provisions are provided to control and regulate operations relating to narcotic drugs and psychotropic substances. The punishments specified in the Act are extremely harsh. Therefore the provisions of the Act must be strictly adhered to. There cannot be substantive compliance with regard to the provisions of search and seizure. Defects in these procedures cannot be overlooked or brushed aside [Also available at 2015 (1) CLJ (CAL) 38]
  13. Without entering into the etymology of legal expressions used by the parties in their argument – viz. whether the OP1/complainant in the absence of an agreement can be considered to be a “purchaser” of a flat within meaning of Section 2(h) of the West Bengal Building (Regulation of promotion of construction and transfer by promoters) Act, 1993  or, is only a “consumer” within meaning of Section 2(d) of the 1986 Consumer Protection Act – it is sufficient for the present purpose of adjudication that the object of the 1993 Act is to give immediate relief to individuals and therefore the legislature in its wisdom has deprived the Civil Court of its jurisdiction by enacting the provisions of Section 12A of the said 1993 Act [Also available at 2015(1) CLJ (Cal) 249]
  14. Sanjay Verma is the latest decision and the three-Judge Bench has given it after considering Sarla Verma, Santosh Devi, Reshma Kumari and Rajesh. In Sanjay Verma, the Supreme Court has not  only stated for the first time that addition on account of future prospects will be applicable to  injury cases as well, but has very clearly stated that the addition on account of future prospects principle will apply to a claim case arising out of death or injury of a self employed victim [Also available at 2015(1) CLJ (Cal) 355]
  15. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer,without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted [Also available at 2015 (1) CLJ (Cal) 460]
  16. In my prima facie opinion there would only be a partial diminution of light on the western side. Assuming the above data to be correct, habitancy cannot become so uncomfortable, as to amount to a nuisance. Following the ratio of the authorities discussed above, where the diminution of light is not substantial, damages are an adequate remedy. Injunction should not be issued [Also available at 2015 (1) CLLJ (Cal) 581]
  17. It is a settled proposition of law that punishment not prescribed under the rules, as a result of disciplinary proceedings, cannot be awarded. Holding departmental proceedings and recording of a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not an administrative one. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to proceed in strict adherence to the said Rules. Thus, the order of transfer as a measure of penalty being outside the purview of the statutory rules is a nullity and cannot be enforced against the petitioner [Also available at 2016(2) CLJ (Cal) 255]
  18. If the owner of a property himself by agreement concedes to give right to the financier to take possession of a moveable property in case of default in payment of instalments and in exercise of that right possession is taken by the financier without committing any offence, the hirer cannot take the shelter of Article 300A of the Constitution and complain that he was deprived of his property without the authority of law [Also available at 2016(2) CLJ (Cal) 184]
  19. The primary issue involved in this matter is as to whether the petitioner is entitled to get full HRA irrespective of the fact that her husband is drawing HRA from his employer. The said issue has already been answered through the judgment delivered in the case of Latika Sahu (supra) and the Hon’ble Appeal Court had arrived at a definite finding to the effect that the ceiling of HRA can only be imposed when both the husband and wife will be in a position to share a common roof for the purpose of attending their respective places of employment [Also available at 2016 (2) CLJ (Cal) 18]
  20. The expression “reasonable grounds for believing that the accused is not guilty of the alleged offence” in Section 37 of N.D.P.S. Act does not, however, mean prima facie ground. It means something more, that is, substantial probable cause for believing that accused is not guilty of the alleged offence. In other words, it means the existence of such facts and circumstances that by itself would justify satisfaction that the accused is not guilty of the offence [See: Union of India Vs. Rattan Mallik @ Habul, (2009) 2 SCC 624, Para 13] [Also available at 2016(2) CLJ (Cal)70]
  21. “When a particular qualification is laid down in an advertisement relating to a distinct class of candidates, the candidate possessing a qualification higher than that advertised can ordinarily not be debarred or disqualified, but it is open to the employer to make a rule providing for disqualification of candidates possessing qualification higher than the prescribed qualification, but the burden would be on the employer to justify such a rule.” [Also available at 2016 (2) CLJ (Cal) 83]
  22. In a domestic enquiry the management has the right to present its case against the delinquent employee. This is done through the Presenting Officer. His job is to adduce evidence in support of the charges. Generally, he is not a witness. But if he also appears as a witness on behalf of the management, he has to be offered for cross-examination by the delinquent employee. The enquiry will stand vitiated if the delinquent is not allowed to cross examine him [Also available at 2015 (2) CLJ (Cal) 169]
  23. The exact age can never be determined by way of ossification test and there is bound to be variation of one to two years of age depending on climate and racial structure of the person undergoing ossification test. Accordingly, the legislatures in their wisdom have given benefit to the child or juvenile relaxation of one year of age on the lower side at the time of framing Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 [Also available at 2015 (2) CLJ (Cal) 181]
  24. There is no dispute that in view of the provisions contained in Section 134 of the Trade Marks Act of 1999, if a plaintiff intends to file a suit alleging infringement of the registered trade mark of his product, no Court inferior to a District Judge can entertain the said suit [Also available at 2015 (2) CLJ (Cal) 345]
  25. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other [Also available at 2015 (2) CLJ (Cal) 372]
  26. Therefore, since the statute is a beneficial legislation, to try a claim case, the provisions of the Evidence Act are not to be followed rigidly. The Tribunal is to assess acceptability of the evidence, whatever minimum evidence that may be, with logic and reasonableness and with human touch [Also available at 2015 (2) CLJ (Cal) 380]
  27. In order to succeed in a suit for specific performance the continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff’s part of the contract [Also available at 2015 (2) CLJ (Cal) 395]
  28. Order 7 Rule 11 (d) of the Code can be pressed in action only when from the meaningful reading of the plaint and taken the statements to be correct, the suit does not disclose any cause of action. It is the plaint and only the plaint which should be looked into to find out that it would be a futile exercise if such suit is allowed to continue [Also available at 2015 (2) CLJ (Cal) 546]
  29. It is now a well settled principle of law that in a case where a disciplinary proceeding is pending when the employee attained the age of superannuation, the disciplinary proceeding will automatically come to an end. It is trite that a disciplinary proceeding cannot be allowed to continue after the employee retires. However, in the event of pecuniary loss and or grave misconduct, the authorities enjoy the right to continue with such proceeding initiated prior to superannuation of the employee concerned [Also available at 2015 (2) CLJ (Cal) 591]
  30. I am of the considered view that since there is no specific empowerment given to the District Judge to hear the appeal under Section 218(3) of the West Bengal Municipal Act, 1993, the District Judge ordinarily cannot be construed to be a Court having jurisdiction. Legislative intent is that the litigants at large may avail the forum of appeal before the lowest competent Court having jurisdiction being the Court of the Civil Judge (Junior Division). Had the intention of the legislature been to give appellate jurisdiction to a Court of District Judge under Sections 218 (3) of the Act, the framer of the statute must have inserted the word Principal Civil Court to mean the court of the District Judge in a district [Also available at 2015 (2) CLJ (Cal) 601]
  31. The official accommodation/quarter, during the period of allotment, therefore, was the couple’s home. However, the wife cannot claim possession of the official accommodation/quarter, once the writ petitioner became disentitled to occupy the same [Also available at 2015 (2) CLJ (Cal) 637]
  32. “It has to be borne in mind, while awarding compensation for future loss of earnings, there must be evidence to show that as a result of injury, the income was reduced or there was loss of earnings or he was removed from service on account of disability or he is incapable of doing any work.”[Also available at 2015(3) CLJ (Cal) 185]
  33. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. The chain of circumstance should be of a conclusive nature and must be complete and most clearly point out to the guilt of the accused [Also available at 2015 (3) CLJ (Cal) 202]
  34. Considering the aforesaid judgments, in our opinion, a Will can be proved even if one attesting witness is examined. There is no need for more than one attesting witnesses to be examined at all. It is no doubt true that the execution of the Will must be in the presence of “at least” two attesting witnesses. However, this does not mean that both the witnesses have to be examined before the Court unless one of the witnesses has failed to prove the execution of the Will. No adverse interference can be drawn merely because all the attesting witnesses have not been examined to prove the Will [Also available at 2015 (3) CLJ (Cal) 222]
  35. We make it clear that a writ petition need not be filed only for seeking a relief of direction referring the matter to Lok Adalat. This is so, in the light of express provision under the Legal Services Act that a pre-litigation Lok Adalat is possible even before commencing of litigation or initiation of a litigation in the Court of Law and the party who intends to have the dispute settled without approaching the Court of Law can always appear before the Legal Services Authority with an application asking for pre-litigation Adalat [Also available at 2015 (3) CLJ (Cal) 239]
  36. The question that came up for consideration before the Hon’ble Supreme Court was whether Anganwadi workers held a civil post. Their Lordships answered the same in negative and dismissed the appeal. In this judgement, the Apex Court opined that the posts of Anganwadi workers were not statutorily created posts but was a creation in terms of a scheme. Though the employer and employee relationship exists in such posts, but they cannot be equated to the status of a civil servant, was the opinion expressed [ Also available at 2015 (3) CLJ (Cal) 323]
  37. We conclude by holding that while assessing compensation payable to the claimants under section 163A of the said Act when a victim dies bachelor, 1/3rd should be deducted from his total income on account of his personal expenses, as deduction of 1/3rd from the total income of the victim is statutorily recognised [Also available at 2015 (3) CLJ (Cal) 572]
  38. The Sub Rule 1 of Rule 6A is couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim which may form the subject matter of the independent suit, therefore, there is no hesitation to hold that the counter claim may be made by the defendant on his own cause of action against the plaintiff and is not relatable to the cause of action of the plaintiff or restricted to a money suit or suit for damages. [Also available at 2015 (3) CLJ (Cal) 401]
  39. In arriving at the said conclusion the Division Bench applied a very settled principle of law that if the statute allows an authority to act in a particular way that act must be done in that way or should not be done at all. In this case, the Division Bench held, the law has not permitted the respondent authority to assess at the rate of equal to twice the tariff applicable for the category for which the electricity was unauthorizedly used for one year [Also available at 2016 (2) CLJ (Cal) 391]
  40. There is a clear distinction between a lease and a license though at times the dividing line between the two becomes thin and even blurred. The level attached to document is not conclusive as to its character, i.e., whether a lease or a license. The substance of the terms agreed upon is the determining factor. A license is defined in Section 52 of the Easement Act. It is a permission to do some act which, within such permission, it would be unlawful to do. It has, therefore, to be held that a license does not create any estate or interest in property to which it relates while a lease does. Exclusive possession does not necessarily ruled out the possibility of a license [Also available at 2016 (2) (Cal) 397]
  41. Applying the aforesaid principle in the matter of giving notice under section 138(b) of the Act to the drawer, it can be safely construed that a notice addressed to a director/authorised signatory of a cheque who had represented the drawer company in the course of the transaction resulting in the issuance of the dishonoured cheque shall be deemed to be a notice issued upon the company itself inasmuch as the knowledge of the said human agency of the notice may be attributed to the body corporate itself [Also available at 2016 (2) CLJ (CAL) 413]
  42. The words “survives” and “surviving” have not been used in R. 2 of O. 22 in the technical sense of survivorship prevailing in Hindu Law. The expression “the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone”, means that the right to sue is transmitted or passes to the plaintiff or plaintiffs alone or against the defendant or defendants alone who are already on the record by succession, inheritance or otherwise [Also available at 2016 (2) CLJ (Cal) 298]
  43. So far as the entries made in the official record by an official or person authorized in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases [Also available at 2016 (2) CLJ (Cal) 364]
  44. It is, therefore, clear from the language given in Section 34 of the Act that the Civil Court shall not grant injunction in respect of any action taken or to be taken in pursuance of any order conferred by or under the said Act or under the recovery of money due to Banks and Financial Institutions Act, 1993. Without entering into the area of dispute whether the Civil Court is competent to entertain a suit of such nature, it is manifest from the aforesaid provision that the Civil Court shall not pass any injunction restraining the secured creditor from taking any action under the said Act [Also available at 2016 (2) CLJ (Cal) 457]
  45. Service rendered on promotion on officiating basis outside the cadre is not reckoned for determining seniority. The characteristics of adhoc promotions are substantially the same as officiating promotions. Promotions are given on adhoc basis, inter alia, due to administrative exigencies or to meet emergent or unusual situations. If an adhoc promotee is subsequently not regularized, he does not have any substantive right as such promotee and the entire length of service as an adhoc promotee cannot be counted for seniority
  46. A vibrant judiciary can only perform to its optimum level if the employees who assist in the administration of justice are not dissatisfied. Their expectation to be paid salary at a reasonable level, in tune with the employees of other High Courts is justified. It is true that the basic salary of the employees of the Calcutta High Court may be higher than the employees of other High Courts, but the gross salary earned by employees of other High Courts is far greater than the amount earned by the Calcutta High Court employees. The government would do well to pay attention to this fact while resuming the dialogue with the learned Chief Justice of this High Court. With the original demands being slashed by the Welfare Association, the employees are now not even trying to match the salaries and benefits available to the employees of other High Courts in the country. Therefore, in our opinion, the demand of the High Court employees is reasonable and justified. However, ultimately this demand can be granted only through negotiations and with the rules being framed by the Hon’ble Chief Justice for approval of the Governor of the State. We are sure that wiser counsel will prevail and all concerned would strive to ensure that the travails of the High Court employees cease and their demands are met as expeditiously as possible[Also available at 2016(3) CLJ (Cal) 448].

Source: Official Website of WBJA, Last Updated on 14-11-2017

© Official website of WBJA, India