Whether Unfair trial can be cured by fair appeal? lawweb.in/2022/11/whether-unfair-trial-can-be-c... more Whether Unfair trial can be cured by fair appeal? lawweb.in/2022/11/whether-unfair-trial-can-be-cured-by.html It is then urged by learned Counsel for the appellant that the provision of an appeal under Section 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on "Administrative Law" But as that learned author observes, "in principle there ought to be an observance of natural justice equally at both stages", and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.
However before discussing the contents of the emails it may be stated that as per Section 65B of... more However before discussing the contents of the emails it may be stated that as per Section 65B of The Indian Evidence Act, 1872, for such emails to be proved, it has to be proved/established that the computer during the relevant period was in the lawful control of the person proving the email; that information was regularly fed into the computer in the ordinary course of the activities; that the computer was operating properly and the contents printed on paper are derived from the information fed into the computer in the ordinary course of activities and a certificate identifying the electronic record has to be proved. Most of the emails aforesaid are stated to be exchanged by the defendants No. 3&4 with the son of the defendant No. 1 who has however not been produced in evidence. The plaintiff No. 1 in his affidavit by way of examination-in-chief has also not satisfied the aforesaid conditions of Section 65B of the Act. The emails on which reliance is placed to plead written consent of the defendants No. 3&4 cannot thus be said to be proved.
This article is about rights of lessor's transferee under transfer of property Act.It also affect... more This article is about rights of lessor's transferee under transfer of property Act.It also affects rent litigation. This article is very important for those who are dealing rent litigation or under property law
Apex Court held that that the Indian Stamp Act, 1899 nowhere prescribes any expiry date for use o... more Apex Court held that that the Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provide that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. The stamp papers do not have any expiry period. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.
Supreme Court of India
Thiruvengada Pillai vs Navaneethammal & Anr on 19 February, 2008
. PW1 was only a private consultant and as
already discussed above, he had no personal knowledge ... more . PW1 was only a private consultant and as already discussed above, he had no personal knowledge of the transaction between the parties. The evidence on record shows that PW1 was not in a responsible official position in relation to operation of the computers of the complainant. He was not the author of the log sheets or the invoices and even had no free access to the computer or the computerised record of the complainant which were admittedly maintained under due password known to the concerned office staff and all the documents from Exhibit 31 to Exhibit 44 were furnished to PW1 by office staff of the complainant and were not in his possession. In such circumstances, PW1 could not have issued the said certificate and the said statement of account could not be said to have been proved beyond reasonable doubt.
Section 168 of the Act deals with the concept of “just
compensation” and the same has to be deter... more Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence.
In the light of the above discussion, the Court below
committed serious error i... more In the light of the above discussion, the Court below committed serious error in law, which has resulted into miscarriage of justice to the appellants, which must be corrected. In that view of the matter, the question framed by me above, is answered in the affirmative. 10. To sum up, following order is inevitable.: ORDER a) Second Appeal No.18/2016 is allowed. b) Impugned judgment and decree dated 2.9.2015 passed by Joint Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and decree dated 31.10.2015 passed by District Judge8, Nagpur in Regular Civil Appeal No.448/2015, both are set aside. c) There shall be a decree in terms of prayer clause (2) of the suit which is reproduced below : (2) Declare that the defendant Shri Abhay s/o Purushottam Deshmukh as a dead person and his death is civil death as he is missing from 16.3.2008
and issue death certificate.” IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 18/2016 Sou. Swati w/o Abhay Deshmukh
v Shri Abhay s/o Purushottam Deshmukh
CORAM : A.B.CHAUDHARI, J. DATED : 26th February, 2016
lawweb.in /2017/10/guidelines-for-examination-of-child.html It is trite that the children have be... more lawweb.in /2017/10/guidelines-for-examination-of-child.html It is trite that the children have been accorded special treatment by the legislature (of various countries) and courts because of their special needs. The environment of a court room is unfamiliar and definitely intimidating to a
For the sake of convenience, the directions and
guidelines laid down by the Apex Court and this ... more For the sake of convenience, the directions and guidelines laid down by the Apex Court and this court so far as case involving a child victim or child witness which are required to be mandatorily and urgently implemented are culled out as follows:-
Appellant's challenge to the aforesaid Rules is mainly on the ground that
these Rules put an unre... more Appellant's challenge to the aforesaid Rules is mainly on the ground that these Rules put an unreasonable restriction on his right to practice as an Advocate and are also ultra vires the provisions of Section 30 of the Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High Court of Allahabad has framed the Rules in question which came into force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”. As we are concerned with the validity of Rule 3 and Rule 3A of the said Chapter, the same are reproduced below: “3. Advocate who is not on the Roll of Advocates : An advocate who is not on the Roll of Advocate or the Bar Council of the State in which the Court is situated, shall not appear, act or plead in such Court, unless he files an appointment along with an advocate who is on the Roll of such State Bar Council and who is ordinarily practicing in such Court. In cases in which a party is represented by more than one advocate, it shall be necessary for all of them to file a joint appointment or for each of them to file a separate one. 3-A. (i) Unless the Court grants leave, an Advocate who is not on the Roll of Advocates in the High Court at Allahabad or Lucknow shall not be allowed to appear, act or plead in the High Court at Allahabad or Lucknow as the case might be unless he files appointment along with an Advocate who is on such roll for Allahabad Cases at Allahabad and for Lucknow Cases at Lucknow. We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of the appellant under Article 19(1)(g) of the Constitution of India. The
We are unable to find any reason to hold that birth of the
daughter after the amendment was a nec... more We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the
Section 340 of CrPC, prior to amendment in 1973, was
Section 479-A in the 1898 Code and it was m... more Section 340 of CrPC, prior to amendment in 1973, was Section 479-A in the 1898 Code and it was mandatory under the pre-amended provision to record a finding after the preliminary inquiry regarding the commission of offence; whereas in the 1973 Code, the expression ‘shall’ has been substituted by ‘may’ meaning thereby that under 1973 Code, it is not mandatory that the court should record a finding. What is now required is only recording the finding of the preliminary inquiry which is meant only to form an opinion of the court, and that too, opinion on an
offence ‘which appears to have been committed’, as to whetherthe same should be duly inquired into.
Kochi: "Asking police to inform about the definite evidence against the lawyer, the court said in... more Kochi: "Asking police to inform about the definite evidence against the lawyer, the court said in the interim order, "It appears that one of the other accused, already arrested by the police, had some contact with the petitioner over
A simple photograph may be taken by any one. It may be developed by any other. The person taki... more A simple photograph may be taken by any one. It may be developed by any other. The person taking the photograph or the person present when it was taken can depose as to its taking, much as a person writing or signing a document or present when it is written or signed can depose as to that fact. Upon such deposition the writing becomes admissible subject, of course, to cross examination of the witness proving the document. A photograph is much the same. It has to be identified. Evidence has to be led about the truth of the contents of the photograph which is done upon such identification. A photograph, or any other document, may be proved by any of the 7 ways in which any document may be proved as set out in the case of Rani Bai Vs, LIC, A 1981 MP 69 pg. 72.
It is undisputed, rather admitted that the plaintiff- respondent is a money lender. Naturally he ... more It is undisputed, rather admitted that the plaintiff- respondent is a money lender. Naturally he would be well aware how to write-fill in the pronote and receipt and at which place the adhesive stamps are to be affixed. The perusal of Ex.P-2 and Ex.P- 3 shows that the stamps have been affixed at an unnatural place. It shows that the same were not affixed at the time when Gurpal Singh allegedly signed it. Moreover, no date or signatures of Gurpal Singh are thereon the said stamps. The other point which shows the falsity of the case of the respondent-plaintiff is that if infact Gurpal Singh appellant had received an amount of Rs.5000/- and he did sign in English script why the receipt of amount was not got recorded from him in his handwriting. Then most suspicious circumstance is that why the witnesses of alleged pronote and receipt did write in their own handwriting that Rs.25,000/- was received in their presence. It shows that these persons have signed the document later on at the behest of the plaintiff-respondent. They too have committed forgery. While committing a wrong conscience of men becomes the best and the worst evidence against him. He trembles. Moreover, there is a cutting in the date 28.6.85 written by Parmod Kumar. There is over writing in digit ‘6’ and digit ‘2’ and to make the matter clear the plaintiff attempted to add- Behari in the letter ‘Panch’ which has been made ‘Panchi’. No explanation has been given by the plaintiff-respondent for their over-writings and forgeries. Even none of these made up witnesses were produced in witness box by the plaintiff-respondent. Had they appeared they could have been cross examined. So, until and unless, these persons were not examined by him and they were given up, neither due execution of the pronote and receipt can be said to have been proved nor the passing of consideration can be said to have taken place.” - See more at: http://www.lawweb.in/2015/02/how-to-appreciate-evidence-in-case-of.html#sthash.6ayzVUxN.3sHp9tye.dpuf
Therefore, on the same analogy, once it is proved and the entire facts that the alleged Bahi entr... more Therefore, on the same analogy, once it is proved and the entire facts that the alleged Bahi entries are not negotiable instruments, which can be enforced, not alone sufficient to charge any person with liability, sequelly, the complainant was legally debarred to recover the alleged loan, as envisaged under the indicated provisions of the Money lender's Act and in view of such legal disabilities attached to the complaint, as discussed herein above , are put together, then, in that eventuality, to my mind, the conclusion is irresistible and inescapable that he (complainant) cannot adhere to initiate the criminal prosecution against the respondent within the meaning and in the garb of complaint u/s. 138 of the NI Act. Hence, the trial Court has correctly acquitted the respondent, by way of impugned judgment of acquittal dated 4.6.2014, which, in substance, is as under (paras 16 & 17):
I do not think it is possible to lose sight of the fact that in trade mark and copyright dispute... more I do not think it is possible to lose sight of the fact that in trade mark and copyright disputes, we very often are confronted with written agreements. In copyright matters, agreements are in fact a statutory requirement for an assignment. There must be a written document. The law does not say that the written document of assignment should have an arbitration clause. But many do. What Mr. Dhond suggests, in effect, is that in every one of these cases, all these arbitration clauses must be treated as entirely null, void and otiose. No law that I am aware of even remotely suggests anything of the kind. I think it would do a very great violence not only to the language but to the purpose and ambit of the Arbitration Act as also the Copyright Act, if I would have to read it in the manner Mr. Dhond suggests. 22. I find Mr. Dhond's protests, to the effect that the view I am inclined to take would turn the entire edifice of intellectual property law on its head, needlessly alarmist. It will do nothing of the kind. On the contrary, I believe an acceptance of Mr. Dhond's view must result in widespread confusion and mayhem in commercial transactions. We often have complex commercial documents and transactions that routinely deal with intellectual property rights of various descriptions as part of the overall transaction. This can be said of mergers, acquisitions, joint ventures, the setting up of special purpose vehicles, technology transfer and sharing agreements, technical tie-ups, licensing and so on. The range of fields of human activity that could possibly be covered by any one or more of these is limited by nothing but our own imagination: steel manufacturing, setting up of power plants, software, motor car manufacture, computer hardware, music, films, books and literature, performances and even services. If Mr. Dhond is correct, then in any of these cases, where intellectual property rights are transferred or, for that matter, in any way dealt with, no dispute arising from any such agreement or transactional document could ever be referred to arbitration, and every single arbitration clause in any such document would actually, in his formulation of it, be void and non-est ab initio. It would have to be so — Sukanya Holdings will not allow a dispute relating to intellectual property rights to be segregated from other disputes. I do not think the world of domestic and international commerce is prepared for the apocalyptic legal thermonuclear devastation that will follow an acceptance of Mr. Dhond's submission. 23. Not to put too fine a point on it, Mr. Dhond's argument misses a fundamental aspect of the Supreme Court's decision in V.H. Patel. What the Supreme Court had before it in that case was a reference to arbitration that related to three trade marks and injunction claims in relation to these. One of the arbitral declarations was that the three registered trade marks continued to be the assets of a particular firm. Others before the arbitrator were declared by arbitral award to have no right, title or interest in these marks. The arbitrator issued an injunction permanently restraining those others from using or explosing in the course of trade or otherwise any of those marks in any territory. No question was ever raised before the Supreme Court in V.H. Patel about the award on the issue of the trade marks being bad on account of nonarbitrability, nor did that issue give the Supreme Court pause. The only question of arbitrability was about the dissolution of the firm, and there, as we have seen, the Supreme Court found that reference to arbitration was indeed competent. 24. I note here that the Defendants Nos. 2 to 8 have all filed Affidavits, agreeing to submit their disputes to the arbitration under the arbitration clause in the Term Sheet. Each of them have also said that they were all sub-licensees of Defendant No. 1. They are also, therefore, covered by the amended Section 8 of the Arbitration & Conciliation Act, 1996. 25. In this view of the matter, I see no reason to deny the relief sought. There will be an order in terms of prayer clause (c), which reads as under: “(c) That this Hon'ble Court be pleased to pass an order under Section 8 of the Arbitration and Conciliation Act, 1996 referring the present suit to arbitration pursuant to the Arbitration Agreement contained in the Term Sheet dated 13thJune 2012 executed between the Plaintiff and Defendant No. 1;” In the High Court of Bombay (Before G.S. Patel, J.) Eros International Media Limited v. Telemax Links India Pvt. Ltd. Notice of Motion No. 886 of 2013 In Suit No. 331 of 2013 Decided on April 12, 2016 Citation:2016 SCC OnLine Bom 2179
As a very young lawyer, I suffered from the delusion that I knew the law and thought it should op... more As a very young lawyer, I suffered from the delusion that I knew the law and thought it should operate on the basis of what was written in the textbooks. I once watched my senior argue an obviously bad case in court, knowing well that the judge would laugh him out of court. Somehow my senior wangled an adjournment from the judge, and outside the court, he cackled at his great escape. I turned to a slightly older junior in the chamber and asked why my senior was so happy because the matter would so obviously be lost on the next occasion. My chamber mate looked at me pityingly and said: “Oh, you don’t know the singing horse story?”
lawweb.in /2017/06/how-to-prove-execution-of-notarized.html The Agreement of licence is not regis... more lawweb.in /2017/06/how-to-prove-execution-of-notarized.html The Agreement of licence is not registered as required. It cannot be looked into. Mr. Madon argued that it is notarized. It may be mentioned that notarization is not an additional qualification to give the unregistered document any extra worth. Be that as it may, even the notarization is not done as required. It does not show the number of notarial register of the notary as per the required rules. Its execution cannot even be verified and the applicant has taken no pains to get it verified. 5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not
Whether Unfair trial can be cured by fair appeal? lawweb.in/2022/11/whether-unfair-trial-can-be-c... more Whether Unfair trial can be cured by fair appeal? lawweb.in/2022/11/whether-unfair-trial-can-be-cured-by.html It is then urged by learned Counsel for the appellant that the provision of an appeal under Section 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on "Administrative Law" But as that learned author observes, "in principle there ought to be an observance of natural justice equally at both stages", and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.
However before discussing the contents of the emails it may be stated that as per Section 65B of... more However before discussing the contents of the emails it may be stated that as per Section 65B of The Indian Evidence Act, 1872, for such emails to be proved, it has to be proved/established that the computer during the relevant period was in the lawful control of the person proving the email; that information was regularly fed into the computer in the ordinary course of the activities; that the computer was operating properly and the contents printed on paper are derived from the information fed into the computer in the ordinary course of activities and a certificate identifying the electronic record has to be proved. Most of the emails aforesaid are stated to be exchanged by the defendants No. 3&4 with the son of the defendant No. 1 who has however not been produced in evidence. The plaintiff No. 1 in his affidavit by way of examination-in-chief has also not satisfied the aforesaid conditions of Section 65B of the Act. The emails on which reliance is placed to plead written consent of the defendants No. 3&4 cannot thus be said to be proved.
This article is about rights of lessor's transferee under transfer of property Act.It also affect... more This article is about rights of lessor's transferee under transfer of property Act.It also affects rent litigation. This article is very important for those who are dealing rent litigation or under property law
Apex Court held that that the Indian Stamp Act, 1899 nowhere prescribes any expiry date for use o... more Apex Court held that that the Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provide that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. The stamp papers do not have any expiry period. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.
Supreme Court of India
Thiruvengada Pillai vs Navaneethammal & Anr on 19 February, 2008
. PW1 was only a private consultant and as
already discussed above, he had no personal knowledge ... more . PW1 was only a private consultant and as already discussed above, he had no personal knowledge of the transaction between the parties. The evidence on record shows that PW1 was not in a responsible official position in relation to operation of the computers of the complainant. He was not the author of the log sheets or the invoices and even had no free access to the computer or the computerised record of the complainant which were admittedly maintained under due password known to the concerned office staff and all the documents from Exhibit 31 to Exhibit 44 were furnished to PW1 by office staff of the complainant and were not in his possession. In such circumstances, PW1 could not have issued the said certificate and the said statement of account could not be said to have been proved beyond reasonable doubt.
Section 168 of the Act deals with the concept of “just
compensation” and the same has to be deter... more Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence.
In the light of the above discussion, the Court below
committed serious error i... more In the light of the above discussion, the Court below committed serious error in law, which has resulted into miscarriage of justice to the appellants, which must be corrected. In that view of the matter, the question framed by me above, is answered in the affirmative. 10. To sum up, following order is inevitable.: ORDER a) Second Appeal No.18/2016 is allowed. b) Impugned judgment and decree dated 2.9.2015 passed by Joint Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and decree dated 31.10.2015 passed by District Judge8, Nagpur in Regular Civil Appeal No.448/2015, both are set aside. c) There shall be a decree in terms of prayer clause (2) of the suit which is reproduced below : (2) Declare that the defendant Shri Abhay s/o Purushottam Deshmukh as a dead person and his death is civil death as he is missing from 16.3.2008
and issue death certificate.” IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 18/2016 Sou. Swati w/o Abhay Deshmukh
v Shri Abhay s/o Purushottam Deshmukh
CORAM : A.B.CHAUDHARI, J. DATED : 26th February, 2016
lawweb.in /2017/10/guidelines-for-examination-of-child.html It is trite that the children have be... more lawweb.in /2017/10/guidelines-for-examination-of-child.html It is trite that the children have been accorded special treatment by the legislature (of various countries) and courts because of their special needs. The environment of a court room is unfamiliar and definitely intimidating to a
For the sake of convenience, the directions and
guidelines laid down by the Apex Court and this ... more For the sake of convenience, the directions and guidelines laid down by the Apex Court and this court so far as case involving a child victim or child witness which are required to be mandatorily and urgently implemented are culled out as follows:-
Appellant's challenge to the aforesaid Rules is mainly on the ground that
these Rules put an unre... more Appellant's challenge to the aforesaid Rules is mainly on the ground that these Rules put an unreasonable restriction on his right to practice as an Advocate and are also ultra vires the provisions of Section 30 of the Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High Court of Allahabad has framed the Rules in question which came into force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”. As we are concerned with the validity of Rule 3 and Rule 3A of the said Chapter, the same are reproduced below: “3. Advocate who is not on the Roll of Advocates : An advocate who is not on the Roll of Advocate or the Bar Council of the State in which the Court is situated, shall not appear, act or plead in such Court, unless he files an appointment along with an advocate who is on the Roll of such State Bar Council and who is ordinarily practicing in such Court. In cases in which a party is represented by more than one advocate, it shall be necessary for all of them to file a joint appointment or for each of them to file a separate one. 3-A. (i) Unless the Court grants leave, an Advocate who is not on the Roll of Advocates in the High Court at Allahabad or Lucknow shall not be allowed to appear, act or plead in the High Court at Allahabad or Lucknow as the case might be unless he files appointment along with an Advocate who is on such roll for Allahabad Cases at Allahabad and for Lucknow Cases at Lucknow. We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of the appellant under Article 19(1)(g) of the Constitution of India. The
We are unable to find any reason to hold that birth of the
daughter after the amendment was a nec... more We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the
Section 340 of CrPC, prior to amendment in 1973, was
Section 479-A in the 1898 Code and it was m... more Section 340 of CrPC, prior to amendment in 1973, was Section 479-A in the 1898 Code and it was mandatory under the pre-amended provision to record a finding after the preliminary inquiry regarding the commission of offence; whereas in the 1973 Code, the expression ‘shall’ has been substituted by ‘may’ meaning thereby that under 1973 Code, it is not mandatory that the court should record a finding. What is now required is only recording the finding of the preliminary inquiry which is meant only to form an opinion of the court, and that too, opinion on an
offence ‘which appears to have been committed’, as to whetherthe same should be duly inquired into.
Kochi: "Asking police to inform about the definite evidence against the lawyer, the court said in... more Kochi: "Asking police to inform about the definite evidence against the lawyer, the court said in the interim order, "It appears that one of the other accused, already arrested by the police, had some contact with the petitioner over
A simple photograph may be taken by any one. It may be developed by any other. The person taki... more A simple photograph may be taken by any one. It may be developed by any other. The person taking the photograph or the person present when it was taken can depose as to its taking, much as a person writing or signing a document or present when it is written or signed can depose as to that fact. Upon such deposition the writing becomes admissible subject, of course, to cross examination of the witness proving the document. A photograph is much the same. It has to be identified. Evidence has to be led about the truth of the contents of the photograph which is done upon such identification. A photograph, or any other document, may be proved by any of the 7 ways in which any document may be proved as set out in the case of Rani Bai Vs, LIC, A 1981 MP 69 pg. 72.
It is undisputed, rather admitted that the plaintiff- respondent is a money lender. Naturally he ... more It is undisputed, rather admitted that the plaintiff- respondent is a money lender. Naturally he would be well aware how to write-fill in the pronote and receipt and at which place the adhesive stamps are to be affixed. The perusal of Ex.P-2 and Ex.P- 3 shows that the stamps have been affixed at an unnatural place. It shows that the same were not affixed at the time when Gurpal Singh allegedly signed it. Moreover, no date or signatures of Gurpal Singh are thereon the said stamps. The other point which shows the falsity of the case of the respondent-plaintiff is that if infact Gurpal Singh appellant had received an amount of Rs.5000/- and he did sign in English script why the receipt of amount was not got recorded from him in his handwriting. Then most suspicious circumstance is that why the witnesses of alleged pronote and receipt did write in their own handwriting that Rs.25,000/- was received in their presence. It shows that these persons have signed the document later on at the behest of the plaintiff-respondent. They too have committed forgery. While committing a wrong conscience of men becomes the best and the worst evidence against him. He trembles. Moreover, there is a cutting in the date 28.6.85 written by Parmod Kumar. There is over writing in digit ‘6’ and digit ‘2’ and to make the matter clear the plaintiff attempted to add- Behari in the letter ‘Panch’ which has been made ‘Panchi’. No explanation has been given by the plaintiff-respondent for their over-writings and forgeries. Even none of these made up witnesses were produced in witness box by the plaintiff-respondent. Had they appeared they could have been cross examined. So, until and unless, these persons were not examined by him and they were given up, neither due execution of the pronote and receipt can be said to have been proved nor the passing of consideration can be said to have taken place.” - See more at: http://www.lawweb.in/2015/02/how-to-appreciate-evidence-in-case-of.html#sthash.6ayzVUxN.3sHp9tye.dpuf
Therefore, on the same analogy, once it is proved and the entire facts that the alleged Bahi entr... more Therefore, on the same analogy, once it is proved and the entire facts that the alleged Bahi entries are not negotiable instruments, which can be enforced, not alone sufficient to charge any person with liability, sequelly, the complainant was legally debarred to recover the alleged loan, as envisaged under the indicated provisions of the Money lender's Act and in view of such legal disabilities attached to the complaint, as discussed herein above , are put together, then, in that eventuality, to my mind, the conclusion is irresistible and inescapable that he (complainant) cannot adhere to initiate the criminal prosecution against the respondent within the meaning and in the garb of complaint u/s. 138 of the NI Act. Hence, the trial Court has correctly acquitted the respondent, by way of impugned judgment of acquittal dated 4.6.2014, which, in substance, is as under (paras 16 & 17):
I do not think it is possible to lose sight of the fact that in trade mark and copyright dispute... more I do not think it is possible to lose sight of the fact that in trade mark and copyright disputes, we very often are confronted with written agreements. In copyright matters, agreements are in fact a statutory requirement for an assignment. There must be a written document. The law does not say that the written document of assignment should have an arbitration clause. But many do. What Mr. Dhond suggests, in effect, is that in every one of these cases, all these arbitration clauses must be treated as entirely null, void and otiose. No law that I am aware of even remotely suggests anything of the kind. I think it would do a very great violence not only to the language but to the purpose and ambit of the Arbitration Act as also the Copyright Act, if I would have to read it in the manner Mr. Dhond suggests. 22. I find Mr. Dhond's protests, to the effect that the view I am inclined to take would turn the entire edifice of intellectual property law on its head, needlessly alarmist. It will do nothing of the kind. On the contrary, I believe an acceptance of Mr. Dhond's view must result in widespread confusion and mayhem in commercial transactions. We often have complex commercial documents and transactions that routinely deal with intellectual property rights of various descriptions as part of the overall transaction. This can be said of mergers, acquisitions, joint ventures, the setting up of special purpose vehicles, technology transfer and sharing agreements, technical tie-ups, licensing and so on. The range of fields of human activity that could possibly be covered by any one or more of these is limited by nothing but our own imagination: steel manufacturing, setting up of power plants, software, motor car manufacture, computer hardware, music, films, books and literature, performances and even services. If Mr. Dhond is correct, then in any of these cases, where intellectual property rights are transferred or, for that matter, in any way dealt with, no dispute arising from any such agreement or transactional document could ever be referred to arbitration, and every single arbitration clause in any such document would actually, in his formulation of it, be void and non-est ab initio. It would have to be so — Sukanya Holdings will not allow a dispute relating to intellectual property rights to be segregated from other disputes. I do not think the world of domestic and international commerce is prepared for the apocalyptic legal thermonuclear devastation that will follow an acceptance of Mr. Dhond's submission. 23. Not to put too fine a point on it, Mr. Dhond's argument misses a fundamental aspect of the Supreme Court's decision in V.H. Patel. What the Supreme Court had before it in that case was a reference to arbitration that related to three trade marks and injunction claims in relation to these. One of the arbitral declarations was that the three registered trade marks continued to be the assets of a particular firm. Others before the arbitrator were declared by arbitral award to have no right, title or interest in these marks. The arbitrator issued an injunction permanently restraining those others from using or explosing in the course of trade or otherwise any of those marks in any territory. No question was ever raised before the Supreme Court in V.H. Patel about the award on the issue of the trade marks being bad on account of nonarbitrability, nor did that issue give the Supreme Court pause. The only question of arbitrability was about the dissolution of the firm, and there, as we have seen, the Supreme Court found that reference to arbitration was indeed competent. 24. I note here that the Defendants Nos. 2 to 8 have all filed Affidavits, agreeing to submit their disputes to the arbitration under the arbitration clause in the Term Sheet. Each of them have also said that they were all sub-licensees of Defendant No. 1. They are also, therefore, covered by the amended Section 8 of the Arbitration & Conciliation Act, 1996. 25. In this view of the matter, I see no reason to deny the relief sought. There will be an order in terms of prayer clause (c), which reads as under: “(c) That this Hon'ble Court be pleased to pass an order under Section 8 of the Arbitration and Conciliation Act, 1996 referring the present suit to arbitration pursuant to the Arbitration Agreement contained in the Term Sheet dated 13thJune 2012 executed between the Plaintiff and Defendant No. 1;” In the High Court of Bombay (Before G.S. Patel, J.) Eros International Media Limited v. Telemax Links India Pvt. Ltd. Notice of Motion No. 886 of 2013 In Suit No. 331 of 2013 Decided on April 12, 2016 Citation:2016 SCC OnLine Bom 2179
As a very young lawyer, I suffered from the delusion that I knew the law and thought it should op... more As a very young lawyer, I suffered from the delusion that I knew the law and thought it should operate on the basis of what was written in the textbooks. I once watched my senior argue an obviously bad case in court, knowing well that the judge would laugh him out of court. Somehow my senior wangled an adjournment from the judge, and outside the court, he cackled at his great escape. I turned to a slightly older junior in the chamber and asked why my senior was so happy because the matter would so obviously be lost on the next occasion. My chamber mate looked at me pityingly and said: “Oh, you don’t know the singing horse story?”
lawweb.in /2017/06/how-to-prove-execution-of-notarized.html The Agreement of licence is not regis... more lawweb.in /2017/06/how-to-prove-execution-of-notarized.html The Agreement of licence is not registered as required. It cannot be looked into. Mr. Madon argued that it is notarized. It may be mentioned that notarization is not an additional qualification to give the unregistered document any extra worth. Be that as it may, even the notarization is not done as required. It does not show the number of notarial register of the notary as per the required rules. Its execution cannot even be verified and the applicant has taken no pains to get it verified. 5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not
When Kent's challenge eventually reached the US Supreme Court, it has considered the factors to b... more When Kent's challenge eventually reached the US Supreme Court, it has considered the factors to be considered before transferring juveniles to criminal court. According to it, the judges must assess these factors thoroughly before waiving a juvenile to criminal court:
1. The seriousness of the alleged offense to the community and whether protecting the community requires waiver;
2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willed manner;
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
4. The prosecutive merit, i.e., whether there is evidence upon which a [court] may be expected to return an indictment;
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults;
6. The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional attitude, and pattern of living;
7. The record and previous history of the juvenile, including previous contacts with. . . law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation. . . or prior commitments to juvenile institutions;
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services, and facilities currently available to the juvenile court.12
(italics supplied)
IN THE HIGH COURT OF BOMBAY
Criminal Appeal No. 1153 of 2018, Criminal Writ Petition No. 1346 of 2018 and Criminal Application No. 262 of 2018 in Writ Petition No. 1346 of 2018
Decided On: 15.07.2019
Mumtaz Ahmed Nasir Khan Vs. The State of Maharashtra
We, thus, sum up the references by
holding as under:-
Q. (i). Under which provision of law, a
chi... more We, thus, sum up the references by holding as under:- Q. (i). Under which provision of law, a child, who has completed or is above the age of 16 years and is alleged to have committed a ‘heinous offence’ can maintain his application during the pendency of preliminary assessment by the Board under Section 15 of the Act of 2015? A. For the reasons recorded hereinabove, a child, who has completed or is above the age of 16 years and is alleged to have committed a ‘heinous offence’ can maintain his application for release on bail under Section 12 of the Act of 2015 during the pendency of preliminary assessment by the Board under Section 15 of the Act of 2015. IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.2117 of 2019
LALU KUMAR @ LAL BABU @ LALLU, Vs The State of Bihar
CORAM: MR. JUSTICE ASHWANI KUMAR SINGH and MR. JUSTICE BIRENDRA KUMAR
(Per: MR. JUSTICE ASHWANI KUMAR SINGH) Date :01-10-2019
....... In their Lordships' opinion, this argument is based on too narrow a view of the operation... more ....... In their Lordships' opinion, this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer's case MANU/PR/0013/1901, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind.
Cruelty against animals
Article 11(1)(a) of the Prevention of Cruelty to Animals (1960) defines a... more Cruelty against animals Article 11(1)(a) of the Prevention of Cruelty to Animals (1960) defines animal cruelty as - When any person― (a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated. Section 377 of the Indian Penal Code (1860) defines unnatural offences – a person shall be punished with imprisonment for life or for a term that may extend to 10 years if has voluntary carnal intercourse against an animal.
The idea of equality prevails over every legal jurisprudence. Therefore, in today’s time, it has ... more The idea of equality prevails over every legal jurisprudence. Therefore, in today’s time, it has become an important matter to discuss the rights of the unmarried mother over her children. Generally, the courts give custody of a small child to the mother, and older boys and girls to the father and mother respectively. For older children, the courts also take into consideration the wishes of the children. However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal physical guardian of the child, then the courts will rule accordingly.
Who can administer the estate of a deceased Muslim? The estate of a deceased muslim is to be admi... more Who can administer the estate of a deceased Muslim? The estate of a deceased muslim is to be administered in accordance with the Indian Succession Act,which has replaced all Islamic rules in the matter. The person entitled to administer the estate of deceased muslim are in the order of priority,the executor appointed by his will,or the administrator appointed by the court, in cases where the deceased has not left a will.Failing both,his heirs are entitled to administer his estate. A muslim can not dispose of by will more than one-third of what remains of his property,after payment of his funeral expenses and debts,and remaining two thirds must go to his heirs as on intestacy.
lawweb.in/2020/05/intestate-succession-under-muslim-law.html 1) Applicable law The property of a ... more lawweb.in/2020/05/intestate-succession-under-muslim-law.html 1) Applicable law The property of a deceased muslim is to be distributed according to the law of the school to which he belonged at the time of his death. The law of the school to which the heirs belong is immaterial. 2) What property is heritable? The estate that remains after the payment of the charges that is funeral expenses,debts and legacies,out of the property of the deceased,is heritable property.It includes both movable and immovable property. As muslim law does not recognise the joint family system,no distinction is made between ancestral and self-acquired property. All property that remains after deduction of the above charges is heritable property. 3) Joint family system not recognised in muslim law. 4) in Sunni law, there is no rule of primogeniture that is the principle which lays down that if a man leaves several sons,the eldest son gets an advantage over the rest. 5) Right of heir presumptive,a mere spes successionis Under Muslim law, a son or any other heir does not acquire any interest in the property of a person by birth.The right of an heir presumptive comes in to existence for the first time only on the death of the propositus. During the life time of the propositus,his heirs presumptive have no transferable interest in his property.
Without going
into the legality and validity of such Executive orders, suffice it to say
that th... more Without going into the legality and validity of such Executive orders, suffice it to say that the present case is not covered by any of these executive orders. 32. The Tenants’ application for suspension of rent is thus liable to be rejected inasmuch as while invoking the doctrine of suspension of rent on the basis of a force majeure event, it is clear from the submissions made that the Tenants do not intend to surrender the tenanted premises. While holding that suspension of rent is not permissible in these facts, some postponement or relaxation in the schedule of payment can be granted owing to the lockdown.
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 21st May, 2020 RC. REV. 447/2017
RAMANAND Vs DR. GIRISH SONI CORAM: JUSTICE PRATHIBA M. SINGH
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Papers by lawyer bharat
Supreme Court of India
Thiruvengada Pillai vs Navaneethammal & Anr on 19 February, 2008
already discussed above, he had no personal knowledge of the
transaction between the parties. The evidence on record shows
that PW1 was not in a responsible official position in relation to
operation of the computers of the complainant. He was not the
author of the log sheets or the invoices and even had no free
access to the computer or the computerised record of the
complainant which were admittedly maintained under due
password known to the concerned office staff and all the
documents from Exhibit 31 to Exhibit 44 were furnished to PW1
by office staff of the complainant and were not in his possession.
In such circumstances, PW1 could not have issued the said
certificate and the said statement of account could not be said to
have been proved beyond reasonable doubt.
compensation” and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standard because such determination can never
be in arithmetical exactitude. It can never be perfect. The aim is
to achieve an acceptable degree of proximity to arithmetical
precision on the basis of materials brought on record in an
individual case. The conception of “just compensation” has to be
viewed through the prism of fairness, reasonableness and nonviolation
of the principle of equitability. In a case of death, the
legal heirs of the claimants cannot expect a windfall.
Simultaneously, the compensation granted cannot be an apology
for compensation. It cannot be a pittance. Though the discretion
vested in the tribunal is quite wide, yet it is obligatory on the part
of the tribunal to be guided by the expression, that is, “just
compensation”. The determination has to be on the foundation of
evidence brought on record as regards the age and income of the
deceased and thereafter the apposite multiplier to be applied. The
formula relating to multiplier has been clearly stated in Sarla
Verma (supra) and it has been approved in Reshma Kumari
(supra). The age and income, as stated earlier, have to be
established by adducing evidence.
of the document should be either the plaintiff or a
person who can in certain circumstances bind him. It
is only then it could be said that the instrument is
voidable by or void against him. The second aspect of
the matter emphasises that principle. For there can
be no apprehension if a mere third party, asserting a
hostile title creates a document. Thus relief under
Sec.39 would be granted only in respect of an
instrument likely to affect the title of the plaintiff and
not of an instrument executed by a stranger to that
title."
The Full Bench illustrated that when a trespasser purports to convey the
property in his own right and not in the right of the owners, the remedy of
cancellation of such an instrument cannot be granted because such a relief
would not remove the cloud upon his title by the instrument and the proper
remedy is to seek a declaration of the plaintiff's own title or a declaration that the
sale deed is not binding or valid against the plaintiff. Thus, when a document is
not executed by the plaintiff or by a person who can in any circumstance bind
him, that document cannot create a cloud upon the title of the true owner, nor
does it create apprehension that it may be a source of danger to him.
committed serious error in law, which has resulted into miscarriage of
justice to the appellants, which must be corrected. In that view of the
matter, the question framed by me above, is answered in the
affirmative.
10. To sum up, following order is inevitable.:
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015 passed by Joint
Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and
decree dated 31.10.2015 passed by District Judge8, Nagpur in Regular
Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree in terms of prayer clause (2) of the suit
which is reproduced below :
(2) Declare that the defendant Shri Abhay s/o
Purushottam Deshmukh as a dead person and his
death is civil death as he is missing from 16.3.2008
and issue death certificate.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 18/2016
Sou. Swati w/o Abhay Deshmukh
v
Shri Abhay s/o Purushottam Deshmukh
CORAM : A.B.CHAUDHARI, J.
DATED : 26th February, 2016
guidelines laid down by the Apex Court and this court so far as
case involving a child victim or child witness which are required
to be mandatorily and urgently implemented are culled out as
follows:-
these Rules put an unreasonable restriction on his right to practice as an
Advocate and are also ultra vires the provisions of Section 30 of the
Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High
Court of Allahabad has framed the Rules in question which came into
force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed
under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”.
As we are concerned with the validity of Rule 3 and Rule 3A of the said
Chapter, the same are reproduced below:
“3. Advocate who is not on the Roll of Advocates :
An advocate who is not on the Roll of Advocate or the
Bar Council of the State in which the Court is situated,
shall not appear, act or plead in such Court, unless he
files an appointment along with an advocate who is on
the Roll of such State Bar Council and who is ordinarily
practicing in such Court.
In cases in which a party is represented by more than
one advocate, it shall be necessary for all of them to file
a joint appointment or for each of them to file a separate
one.
3-A. (i) Unless the Court grants leave, an Advocate
who is not on the Roll of Advocates in the High Court at
Allahabad or Lucknow shall not be allowed to appear,
act or plead in the High Court at Allahabad or Lucknow
as the case might be unless he files appointment along
with an Advocate who is on such roll for Allahabad
Cases at Allahabad and for Lucknow Cases at
Lucknow.
We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High
Court Rules, 1952 and perfectly valid, legal and do not violate the right
of the appellant under Article 19(1)(g) of the Constitution of India. The
appeal, therefore, fails and is hereby dismissed.
daughter after the amendment was a necessary condition
for its applicability. All that is required is that daughter
should be alive and her father should also be alive on the
date of the amendment.
Section 479-A in the 1898 Code and it was mandatory under the
pre-amended provision to record a finding after the preliminary
inquiry regarding the commission of offence; whereas in the 1973
Code, the expression ‘shall’ has been substituted by ‘may’
meaning thereby that under 1973 Code, it is not mandatory that
the court should record a finding. What is now required is only
recording the finding of the preliminary inquiry which is meant
only to form an opinion of the court, and that too, opinion on an
offence ‘which appears to have been committed’, as to whetherthe same should be duly inquired into.
22. I find Mr. Dhond's protests, to the effect that the view I am inclined to take would turn the entire edifice of intellectual property law on its head, needlessly alarmist. It will do nothing of the kind. On the contrary, I believe an acceptance of Mr. Dhond's view must result in widespread confusion and mayhem in commercial transactions. We often have complex commercial documents and transactions that routinely deal with intellectual property rights of various descriptions as part of the overall transaction. This can be said of mergers, acquisitions, joint ventures, the setting up of special purpose vehicles, technology transfer and sharing agreements, technical tie-ups, licensing and so on. The range of fields of human activity that could possibly be covered by any one or more of these is limited by nothing but our own imagination: steel manufacturing, setting up of power plants, software, motor car manufacture, computer hardware, music, films, books and literature, performances and even services. If Mr. Dhond is correct, then in any of these cases, where intellectual property rights are transferred or, for that matter, in any way dealt with, no dispute arising from any such agreement or transactional document could ever be referred to arbitration, and every single arbitration clause in any such document would actually, in his formulation of it, be void and non-est ab initio. It would have to be so — Sukanya Holdings will not allow a dispute relating to intellectual property rights to be segregated from other disputes. I do not think the world of domestic and international commerce is prepared for the apocalyptic legal thermonuclear devastation that will follow an acceptance of Mr. Dhond's submission.
23. Not to put too fine a point on it, Mr. Dhond's argument misses a fundamental aspect of the Supreme Court's decision in V.H. Patel. What the Supreme Court had before it in that case was a reference to arbitration that related to three trade marks and injunction claims in relation to these. One of the arbitral declarations was that the three registered trade marks continued to be the assets of a particular firm. Others before the arbitrator were declared by arbitral award to have no right, title or interest in these marks. The arbitrator issued an injunction permanently restraining those others from using or explosing in the course of trade or otherwise any of those marks in any territory. No question was ever raised before the Supreme Court in V.H. Patel about the award on the issue of the trade marks being bad on account of nonarbitrability, nor did that issue give the Supreme Court pause. The only question of arbitrability was about the dissolution of the firm, and there, as we have seen, the Supreme Court found that reference to arbitration was indeed competent.
24. I note here that the Defendants Nos. 2 to 8 have all filed Affidavits, agreeing to submit their disputes to the arbitration under the arbitration clause in the Term Sheet. Each of them have also said that they were all sub-licensees of Defendant No. 1. They are also, therefore, covered by the amended Section 8 of the Arbitration & Conciliation Act, 1996.
25. In this view of the matter, I see no reason to deny the relief sought. There will be an order in terms of prayer clause (c), which reads as under:
“(c) That this Hon'ble Court be pleased to pass an order under Section 8 of the Arbitration and Conciliation Act, 1996 referring the present suit to arbitration pursuant to the Arbitration Agreement contained in the Term Sheet dated 13thJune 2012 executed between the Plaintiff and Defendant No. 1;”
In the High Court of Bombay
(Before G.S. Patel, J.)
Eros International Media Limited
v.
Telemax Links India Pvt. Ltd.
Notice of Motion No. 886 of 2013
In
Suit No. 331 of 2013
Decided on April 12, 2016
Citation:2016 SCC OnLine Bom 2179
Supreme Court of India
Thiruvengada Pillai vs Navaneethammal & Anr on 19 February, 2008
already discussed above, he had no personal knowledge of the
transaction between the parties. The evidence on record shows
that PW1 was not in a responsible official position in relation to
operation of the computers of the complainant. He was not the
author of the log sheets or the invoices and even had no free
access to the computer or the computerised record of the
complainant which were admittedly maintained under due
password known to the concerned office staff and all the
documents from Exhibit 31 to Exhibit 44 were furnished to PW1
by office staff of the complainant and were not in his possession.
In such circumstances, PW1 could not have issued the said
certificate and the said statement of account could not be said to
have been proved beyond reasonable doubt.
compensation” and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standard because such determination can never
be in arithmetical exactitude. It can never be perfect. The aim is
to achieve an acceptable degree of proximity to arithmetical
precision on the basis of materials brought on record in an
individual case. The conception of “just compensation” has to be
viewed through the prism of fairness, reasonableness and nonviolation
of the principle of equitability. In a case of death, the
legal heirs of the claimants cannot expect a windfall.
Simultaneously, the compensation granted cannot be an apology
for compensation. It cannot be a pittance. Though the discretion
vested in the tribunal is quite wide, yet it is obligatory on the part
of the tribunal to be guided by the expression, that is, “just
compensation”. The determination has to be on the foundation of
evidence brought on record as regards the age and income of the
deceased and thereafter the apposite multiplier to be applied. The
formula relating to multiplier has been clearly stated in Sarla
Verma (supra) and it has been approved in Reshma Kumari
(supra). The age and income, as stated earlier, have to be
established by adducing evidence.
of the document should be either the plaintiff or a
person who can in certain circumstances bind him. It
is only then it could be said that the instrument is
voidable by or void against him. The second aspect of
the matter emphasises that principle. For there can
be no apprehension if a mere third party, asserting a
hostile title creates a document. Thus relief under
Sec.39 would be granted only in respect of an
instrument likely to affect the title of the plaintiff and
not of an instrument executed by a stranger to that
title."
The Full Bench illustrated that when a trespasser purports to convey the
property in his own right and not in the right of the owners, the remedy of
cancellation of such an instrument cannot be granted because such a relief
would not remove the cloud upon his title by the instrument and the proper
remedy is to seek a declaration of the plaintiff's own title or a declaration that the
sale deed is not binding or valid against the plaintiff. Thus, when a document is
not executed by the plaintiff or by a person who can in any circumstance bind
him, that document cannot create a cloud upon the title of the true owner, nor
does it create apprehension that it may be a source of danger to him.
committed serious error in law, which has resulted into miscarriage of
justice to the appellants, which must be corrected. In that view of the
matter, the question framed by me above, is answered in the
affirmative.
10. To sum up, following order is inevitable.:
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015 passed by Joint
Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and
decree dated 31.10.2015 passed by District Judge8, Nagpur in Regular
Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree in terms of prayer clause (2) of the suit
which is reproduced below :
(2) Declare that the defendant Shri Abhay s/o
Purushottam Deshmukh as a dead person and his
death is civil death as he is missing from 16.3.2008
and issue death certificate.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 18/2016
Sou. Swati w/o Abhay Deshmukh
v
Shri Abhay s/o Purushottam Deshmukh
CORAM : A.B.CHAUDHARI, J.
DATED : 26th February, 2016
guidelines laid down by the Apex Court and this court so far as
case involving a child victim or child witness which are required
to be mandatorily and urgently implemented are culled out as
follows:-
these Rules put an unreasonable restriction on his right to practice as an
Advocate and are also ultra vires the provisions of Section 30 of the
Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High
Court of Allahabad has framed the Rules in question which came into
force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed
under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”.
As we are concerned with the validity of Rule 3 and Rule 3A of the said
Chapter, the same are reproduced below:
“3. Advocate who is not on the Roll of Advocates :
An advocate who is not on the Roll of Advocate or the
Bar Council of the State in which the Court is situated,
shall not appear, act or plead in such Court, unless he
files an appointment along with an advocate who is on
the Roll of such State Bar Council and who is ordinarily
practicing in such Court.
In cases in which a party is represented by more than
one advocate, it shall be necessary for all of them to file
a joint appointment or for each of them to file a separate
one.
3-A. (i) Unless the Court grants leave, an Advocate
who is not on the Roll of Advocates in the High Court at
Allahabad or Lucknow shall not be allowed to appear,
act or plead in the High Court at Allahabad or Lucknow
as the case might be unless he files appointment along
with an Advocate who is on such roll for Allahabad
Cases at Allahabad and for Lucknow Cases at
Lucknow.
We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High
Court Rules, 1952 and perfectly valid, legal and do not violate the right
of the appellant under Article 19(1)(g) of the Constitution of India. The
appeal, therefore, fails and is hereby dismissed.
daughter after the amendment was a necessary condition
for its applicability. All that is required is that daughter
should be alive and her father should also be alive on the
date of the amendment.
Section 479-A in the 1898 Code and it was mandatory under the
pre-amended provision to record a finding after the preliminary
inquiry regarding the commission of offence; whereas in the 1973
Code, the expression ‘shall’ has been substituted by ‘may’
meaning thereby that under 1973 Code, it is not mandatory that
the court should record a finding. What is now required is only
recording the finding of the preliminary inquiry which is meant
only to form an opinion of the court, and that too, opinion on an
offence ‘which appears to have been committed’, as to whetherthe same should be duly inquired into.
22. I find Mr. Dhond's protests, to the effect that the view I am inclined to take would turn the entire edifice of intellectual property law on its head, needlessly alarmist. It will do nothing of the kind. On the contrary, I believe an acceptance of Mr. Dhond's view must result in widespread confusion and mayhem in commercial transactions. We often have complex commercial documents and transactions that routinely deal with intellectual property rights of various descriptions as part of the overall transaction. This can be said of mergers, acquisitions, joint ventures, the setting up of special purpose vehicles, technology transfer and sharing agreements, technical tie-ups, licensing and so on. The range of fields of human activity that could possibly be covered by any one or more of these is limited by nothing but our own imagination: steel manufacturing, setting up of power plants, software, motor car manufacture, computer hardware, music, films, books and literature, performances and even services. If Mr. Dhond is correct, then in any of these cases, where intellectual property rights are transferred or, for that matter, in any way dealt with, no dispute arising from any such agreement or transactional document could ever be referred to arbitration, and every single arbitration clause in any such document would actually, in his formulation of it, be void and non-est ab initio. It would have to be so — Sukanya Holdings will not allow a dispute relating to intellectual property rights to be segregated from other disputes. I do not think the world of domestic and international commerce is prepared for the apocalyptic legal thermonuclear devastation that will follow an acceptance of Mr. Dhond's submission.
23. Not to put too fine a point on it, Mr. Dhond's argument misses a fundamental aspect of the Supreme Court's decision in V.H. Patel. What the Supreme Court had before it in that case was a reference to arbitration that related to three trade marks and injunction claims in relation to these. One of the arbitral declarations was that the three registered trade marks continued to be the assets of a particular firm. Others before the arbitrator were declared by arbitral award to have no right, title or interest in these marks. The arbitrator issued an injunction permanently restraining those others from using or explosing in the course of trade or otherwise any of those marks in any territory. No question was ever raised before the Supreme Court in V.H. Patel about the award on the issue of the trade marks being bad on account of nonarbitrability, nor did that issue give the Supreme Court pause. The only question of arbitrability was about the dissolution of the firm, and there, as we have seen, the Supreme Court found that reference to arbitration was indeed competent.
24. I note here that the Defendants Nos. 2 to 8 have all filed Affidavits, agreeing to submit their disputes to the arbitration under the arbitration clause in the Term Sheet. Each of them have also said that they were all sub-licensees of Defendant No. 1. They are also, therefore, covered by the amended Section 8 of the Arbitration & Conciliation Act, 1996.
25. In this view of the matter, I see no reason to deny the relief sought. There will be an order in terms of prayer clause (c), which reads as under:
“(c) That this Hon'ble Court be pleased to pass an order under Section 8 of the Arbitration and Conciliation Act, 1996 referring the present suit to arbitration pursuant to the Arbitration Agreement contained in the Term Sheet dated 13thJune 2012 executed between the Plaintiff and Defendant No. 1;”
In the High Court of Bombay
(Before G.S. Patel, J.)
Eros International Media Limited
v.
Telemax Links India Pvt. Ltd.
Notice of Motion No. 886 of 2013
In
Suit No. 331 of 2013
Decided on April 12, 2016
Citation:2016 SCC OnLine Bom 2179
1. The seriousness of the alleged offense to the community and whether protecting the community requires waiver;
2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willed manner;
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
4. The prosecutive merit, i.e., whether there is evidence upon which a [court] may be expected to return an indictment;
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults;
6. The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional attitude, and pattern of living;
7. The record and previous history of the juvenile, including previous contacts with. . . law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation. . . or prior commitments to juvenile institutions;
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services, and facilities currently available to the juvenile court.12
(italics supplied)
IN THE HIGH COURT OF BOMBAY
Criminal Appeal No. 1153 of 2018, Criminal Writ Petition No. 1346 of 2018 and Criminal Application No. 262 of 2018 in Writ Petition No. 1346 of 2018
Decided On: 15.07.2019
Mumtaz Ahmed Nasir Khan Vs. The State of Maharashtra
Hon'ble Judges/Coram:
Dama Seshadri Naidu, J.
holding as under:-
Q. (i). Under which provision of law, a
child, who has completed or is above the age
of 16 years and is alleged to have committed
a ‘heinous offence’ can maintain his
application during the pendency of
preliminary assessment by the Board under
Section 15 of the Act of 2015?
A. For the reasons recorded hereinabove, a
child, who has completed or is above the age of
16 years and is alleged to have committed a
‘heinous offence’ can maintain his application for
release on bail under Section 12 of the Act of
2015 during the pendency of preliminary
assessment by the Board under Section 15 of the
Act of 2015.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2117 of 2019
LALU KUMAR @ LAL BABU @ LALLU, Vs The State of Bihar
CORAM: MR. JUSTICE ASHWANI KUMAR SINGH
and MR. JUSTICE BIRENDRA KUMAR
(Per: MR. JUSTICE ASHWANI KUMAR SINGH)
Date :01-10-2019
Article 11(1)(a) of the Prevention of Cruelty to Animals (1960) defines animal cruelty as - When any person― (a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated.
Section 377 of the Indian Penal Code (1860) defines unnatural offences – a person shall be punished with imprisonment for life or for a term that may extend to 10 years if has voluntary carnal intercourse against an animal.
Generally, the courts give custody of a small child to the mother, and older boys and girls to the father and mother respectively. For older children, the courts also take into consideration the wishes of the children. However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal physical guardian of the child, then the courts will rule accordingly.
into the legality and validity of such Executive orders, suffice it to say
that the present case is not covered by any of these executive orders.
32. The Tenants’ application for suspension of rent is thus liable to be
rejected inasmuch as while invoking the doctrine of suspension of rent on
the basis of a force majeure event, it is clear from the submissions made that
the Tenants do not intend to surrender the tenanted premises. While holding
that suspension of rent is not permissible in these facts, some postponement
or relaxation in the schedule of payment can be granted owing to the
lockdown.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st May, 2020
RC. REV. 447/2017
RAMANAND Vs DR. GIRISH SONI
CORAM:
JUSTICE PRATHIBA M. SINGH