S.Singla and Associates

05/10/2022

On this auspicious day of Dussehra. I wish you every happiness and the fulfilment of all your dreams.

Regards,
Saurabh Singla,
Advocate
Punjab and Haryana High Court,
Chandigarh

18/09/2022

The Delhi High Court has observed that in matrimonial cases where settlement has taken place, offence under sec. 377 of Indian Penal Code can be compromised and FIR can be quashed as parties have to move ahead in life.

Justice Talwant Singh thus concurred with the decision of a coordinate bench in Rifakat Ali & Ors v. State & Anr. decided on February 26, 2021 wherein the Court had quashed an FIR under sec. 377 of IPC on the ground that the parties had compromised the matter with each other only because it arose out of a matrimonial dispute.

"So, the view of the co-ordinate bench is that in matrimonial cases, where settlement has taken place, even the offence under Section 377 IPC can be compromised and FIR can be quashed as parties have to move ahead in life. I concur with the said view," the Court observed in a ruling dated September 6.
The Court thus quashed an FIR registered under sec. 406, 498A, 354, 377 and 34 of IPC filed by a wife at Police Station Crime Women Cell, Nanak Pura.

The husband had approached the High Court seeking quashing of the FIR on the ground that the wife had settled all her disputes amicably with the husband and in laws and that a settlement was arrived at between the parties in September last year.

As per the settlement agreement, it was agreed that the husband shall pay lump sum amount of Rs.74,00,000 to the wife as full and final settlement towards all claims, Stridhan, child maintenance and permanent alimony whereas the wife shall invest out of the aforesaid sum, Rs. 10 lakhs in the name of their minor child for his benefit till he attains the age of majority.

It was also agreed that the custody and guardianship of the minor child shall remain with wife who shall be the sole custodian of the child. It was agreed that the husband may have a video call with the child for one hour on his birthday or may alternatively meet the child for one hour in the week.

"Keeping in view the fact that parties have settled all their disputes, hence the offence under Section 354 IPC is also allowed to be quashed to put an end to all bickerings between the parties and allow them to begin a new chapter of their lives," the Court said.

While quashing the FIR, the Bench said that the parties shall remain bound by the terms of the settlement and the undertakings given to the Court.

The plea was accordingly disposed of.

Case Title: ANEESH GUPTA & ORS. v. STATE OF NCT OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 869

15/08/2022

15/08/2022

Punjab and Haryana High Court recently held that as per Section 7(i) of the Court Fees Act, 1870, where the suit is for money including suits for damages, compensation or arrears of maintenance, of annuities, or of other sums payable periodically, the Court fee is payable according to the amount claimed.

Where the suit is for money including suits for damages or compensation or arrears of maintenance, of annuities, or of other sums payable periodically, Section 7(i) lays down, as to how the amount of Court fee payable is required to be calculated. Thus, from the aforesaid, it is evident that whenever the suit is for money, the Court fee is payable according to the amount claimed.

In the facts of instant case, the bench comprising Justice Archana Puri said that since it is apparent that the suit is for the recovery of a specified amount of money, the ad valorem court fee will be payable, according to the amount claimed.

The court was dealing with a case where under the garb of suit for declaration with mandatory injunction, the petitioner/plaintiff was seeking recovery of Rs.15,00,000/-, as damages for the poor work of construction that the defendants undertook on the expenses of the plaintiff.

The court noted that the amount of Court fee is regulated by the Court Fees Act, 1870 wherein Section 7 of the said Act prescribes the procedure to compute the amount of fee payable in a suit and according to Section 7, in a suit for money, the Court fee is payable according to the amount claimed.

The Court is entitled to carefully examine the contents of the plaint to arrive at a conclusion as per the mandate of Order VII Rule 11 CPC, the court added.

As far as the facts and circumstances of the instant case are concerned, the court observed that even though the plaintiff filed a suit for declaration and mandatory injunction but careful reading of the plaint makes it clear that it is a suit for recovery.

As such, it is evident that it is the specified amount of Rs.15,00,000/-, which is sought for by the petitioner/plaintiff. It is apparent that the petitioner/plaintiff is seeking recovery of the amount of Rs.15,00,000/-. However, it is only on account of clever drafting, he had filed a suit for declaration and mandatory injunction, but under this garb, it is in fact, a suit for recovery. Thus, from the reading of the contents of the plaint, it stands established that the suit is for recovery of Rs.15,00,000/-, although cleverly projected as declaratory suit with consequential relief of mandatory injunction.

The court placed reliance on Apex Court's judgement in 'State of Punjab and others Vs. Dev Brat Sharma' wherein it was held that in a suit for recovery as damages, ad valorem court fee would be payable on amount of damages claimed.

Adverting to the case in hand, the court concluded that the suit is for the money and therefore, as per Section 7(i) of the Court Fees Act, 1870, the ad valorem court fee is payable, according to the amount claimed.

Accordingly, the present revision petition is dismissed.

Case Title : Surender Kumar @ Salender Kumar v. Abid Khan And Others

03/08/2022

While quashing a r**e case, the Supreme Court observed that there is a distinction between a false promise to marriage and a breach of promise which is made in good faith but subsequently not fulfilled.

The court noted that, in this case, both parties were admittedly in a consensual relationship from 2009 to 2011. Though the victim contended that this relationship was on an assurance of marriage by the accused, the complaint was filed only in 2016 after three years, which led to registration of FIR under Section 376 and 420, IPC. The Bombay High Court had earlier dismissed the writ petition filed by the accused observing that r**e 'is said to be an offence against the society'.

We find ex facie the registration of FIR in the present case is abuse of the criminal process, the bench comprising Justices Sanjay Kishan Kaul and MM Sundresh observed.

The court observed that permitting further proceedings under the FIR would amount to harassment to the accused through the criminal process itself. "The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage", the court added.

Referring to an earlier judgment in Pramod Suryabhan Pawar Vs. State of Maharashtra (2019) 9 SCC 608, the bench observed:

"We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled "Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr." where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860".
In Pramod Suryabhan Pawar, the Supreme Court had observed thus: "The "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

Case details

Mandar Deepak Pawar vs State of Maharashtra | 2022 LiveLaw (SC) 649 | CrA 442/2022 | 27 July 2022 | Justices Sanjay Kishan Kaul and MM Sundresh

Headnotes

Indian Penal Code, 1860 ; Section 375 and 90 - The parties chose to have physical relationship without marriage for a considerable period of time - For some reason, the parties fell apart. It can happen both before or after marriage - FIR lodged three years thereafter - Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself Distinction between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled - Referred to Pramod Suryabhan Pawar Vs. State of Maharashtra (2019) 9 SCC 608.

30/07/2022

Punjab and Haryana High Court recently allowed relief to the ex-employee of Haryana Vidyut Prasaran Nigam Limited, who retired from service after attaining the age of superannuation but his pensionary benefits were withheld by the respondents.

….. once the petitioner is found innocent of the allegations alleged and has suffered prejudice only due to the actions of the respondent-Department as the petitioner was prevented from availing his pensionary benefits upon his retirement for a sufficient long period of time and also petitioner could not use those financial benefits to his benefit, the petitioner becomes entitled for the grant of interest on the delayed payments to mitigate the prejudice/hardship suffered by him, which is in consonance of settled principle of law.

The bench comprising Justice Harsimran Singh Sethi further added that the respondents were well within their right to withhold certain pensionary benefits at the time of petitioner's retirement because there was criminal as well as departmental proceedings pending against him but after the proceedings there was no valid justification to retain the same.

It is a conceded position that when the petitioner retired from service on 30.09.2015, there were criminal as well as departmental proceedings pending against the petitioner and the respondents were well within their right to withhold certain pensionary benefits admissible to the petitioner after retirement but after those proceedings ended, there was no valid justification to retain the same especially when the petitioner was exonerated of the allegations before the Criminal Court as well as in the departmental proceedings.

In the present case, the petitioner retired from service in 2015 but the amount of gratuity and other benefits were retained by the respondents because there were criminal and departmental proceedings pending against him.

The court further noted that acts attributable respondents cannot cause prejudice to an employee whose pension was firstly withheld on the basis of pendency of the charge sheets and thereafter, he was denied the interest on the delayed payments, despite the fact that he was found innocent in all those allegations.

The acts which are attributable to the respondents cannot cause prejudice to an employee by firstly withholding his pensionary benefits on the basis of pendency of the charge sheets issued by the Department alleging certain allegations and thereafter, by denying him grant of interest on the delayed payments, despite the fact that the employee was found innocent as the Department concerned failed to prove those allegations.

Keeping in view the facts and circumstances of this case, the court held that once the petitioner is found innocent of the allegations alleged, he becomes entitled for the grant of interest on the delayed payments to mitigate the prejudice/hardship suffered by him.

Accordingly, the court allowed present writ petition.

Case Title: Ram Mehar Versus Haryana Vidyut Prasaran Nigam Limited (HVPNL) and others

30/07/2022

The Karnataka High Court has said only in a trial can it be held whether a property is ancestral property or self acquired properties and therefore amendment of the plaint at the pre-trial stage to include such properties, is permissible.

A single judge bench of Justice Sachin Shankar Magadum rejected a petition filed by K Durga Prasad Shetty, challenging an order dated November 16, 2021 by which the trial court allowed the application filed by the original plaintiffs Dr Shashikala and others under Order VI, Rule 17 read with Section 151 of Code of Civil Procedure, to incorporate additional properties and pleadings in that regard.

The petitioner's counsel placing reliance on the judgment of the Supreme Court in the case of Revajeetu Builders and Developers .vs. Narayanaswamy and sons and others (2009) 10 SCC 84, said trial Court while dealing with amendment application is under bounden duty to find out whether the amendment application is tainted with malafides and therefore, if at this juncture, the respondent-plaintiff is permitted to bring in the self acquired properties of the petitioner, the petitioner would be put to irreparable loss.

On the other hand the counsel for respondents contended that the amendment was sought at pre-trial stage and therefore, all amendments more particularly those which are sought at pre-trial stage have to be liberally allowed by taking a lenient view.

Moreover, where relationships are admitted and if one of the family members was to assert and claim that particular property is his self acquired property, the said question has to be adjudicated only by a full fledged trial and the parties have to be relegated to trial. At the stage of considering amendment application, the family members cannot be permitted to assert absolute right over a particular property, it was argued.

Findings:

The bench noted that the respondent (original plaintiffs in the suit) has specifically averred that there is an arrangement in the family where the present petitioner-defendant is entrusted to look after the suit schedule property and is under bounden duty to render accounts of income and expenditure every year and is required to distribute the profits derived from the suit schedule properties. It is also alleged that the petitioner-defendant has utilized the income derived from the joint family ancestral property.

Further in regards to the amendment application the bench said, "By way of amendment the respondents-plaintiffs claim that the properties which are now sought to be inserted by way of amendment are also joint family ancestral properties while the petitioner claims that these properties are his self acquired properties and therefore, not available for partition."

It held, "These rival submissions made by the plaintiffs and defendant are to be tested only by way of a full fledged trial. Though plaintiffs claim that the properties now sought to be included are also joint family ancestral properties, the said statement has to be corroborated and substantiated during trial."

It added, "Initial burden is on the plaintiffs. Once the said initial burden is discharged, the onus would shift on the petitioner-defendant. Therefore, it is equally incumbent on the part of the defendant to lead rebuttal evidence to discharge his burden and establish that the properties covered under the amendment application are his self acquired properties. Without having recourse to this adjudication process, neither these properties can be held to be ancestral properties nor self acquired properties. Therefore, the amendment of plaint is absolutely necessary."

The court also opined, "Merely because the proposed amendment may cause some inconvenience to the petitioner-defendant, on an assumption that it is his self acquired properties cannot be a ground to reject the amendment application."

Case Title: K Durga Prasad Shetty v. Dr Shashikala and Others

Case No: Writ Petition No 22744/2021

Citation: 2022 LiveLaw (Kar) 290

Date of Order: July 11, 2022

Appearance: Advocate Anandarama K for petitioner; Advocate Shravanth Arya Tandra for R1-3

30/07/2022

The Delhi High Court has held that the Court has the authority to give necessary directions under Order 18 Rule 1 CPC on the procedural aspect as regards which party will lead evidence first. The bench further noted that correction of a procedural order was an inherent power of the court and may be corrected ex debito justitiae to prevent the abuse of its process.

Justice Mini Pushkarna said,

" The unequivocal position that emerges is that if the defendants set up a case, which if decided, would decide the issues raised in the suit completely, then the defendants can be directed to lead evidence first under Order 18 Rule 1 CPC. "
The bench further rejected the contention of defendant that the order by which directions were given to the plaintiff to lead evidence first, has attained finality in the absence of any appeal against thereto. It observed,

" The directions as regards the filing of list of witnesses and evidence by way of affidavit, is in the nature of a procedural order...Correction of a procedural order is an inherent power and may be corrected ex debito justitiae to prevent the abuse of its process."
The case pertains to property dispute between siblings following the death of their father. It was claimed by the plaintiff that the parties to the suit who were all legal heirs of the deceased were in joint possession of his properties. However, the defendant 1, who was the brother of the plaintiff, stated that there was an unregistered will drawn by father of the parties, by which their father had left his residential property and a commercial flat to him exclusively. The submission of the plaintiff was supported by defendants 2 and 3 (who were both sisters of the parties).

The plaintiff filed the present application under Order 18 Rule 1 CPC praying that the defendants 2 and 3 be called upon to lead their evidence first. The defendant 1 opposed the application on the ground that the claim made by the plaintiff in the suit had not been admitted by the defendant in his written statement. Therefore, the onus lied upon the plaintiff to establish her case. It was also submitted that the defendant no. 2 and 3 could not be allowed to begin the recording of the evidence prior to the plaintiff, since plaintiff had to be examined first to prove her case.

The counsel appearing on behalf of defendants 2, 3 and 4 had supported the application of the plaintiff. He submitted that the Court could direct who will begin the evidence and that provisions of Order 18 Rule 1 CPC do no curb the power of the Court in this regard. He further contended that in a suit for partition, every claimant was a plaintiff, therefore, strict distinction could not be made in a suit for partition as regards the plaintiffs and defendants.

The court noted that defendant no. 1 did not deny the existence of a registered Will dated 05.09.2014, by which all the parties, including the plaintiff herein, were bequeathed shares in the properties owned by their father. The defendant no. 1 in his written statement had put up a case that their father revoked his earlier registered Will dated 05.09.2014 by a subsequent Will dated 12.07.2016, which was unregistered, by which he had bequeathed the properties in Model Town and Gurgaon in his favour.

Thus, the Court said that the defendant no. 1 has admitted to the existence of the registered Will dated 05.09.2014, by which the plaintiff had also got certain shares from the properties, which are subject matter of partition in the present suit, which as per defendant no. 2 to 4 is the last Will of the father of the parties, though as per defendant no. 1, the same has been revoked. In view of the aforesaid, the Court said that the defendants have set up a case, which if proved, would decide the issues raised in the suit itself

The court took into account the judgement of Achala Mohan Vs Jayashree Singh, where it was held that if a defendant sets up a case, the proving of which, would completely decide the issues which have been raised in the suit itself, then the Defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first.

The defendant no. 1 contended that the court, via its 2019 order, had directed the plaintiff to lead evidence first. He further submitted that the said order had attained finality in the absence of any appeal against the same. Here the court noted that the directions as regards the filing of list of witnesses and evidence by way of affidavit were in the nature of a procedural order. Further, Order 16 CPC deals with summoning and attendance of witnesses, which are procedural in nature. Therefore, the court opined that it had the authority to give necessary directions under Order 18 Rule 1 CPC on the procedural aspect as regards which party will begin the evidence.

Thus, the court opined that this was an appropriate case where the defendants should lead the evidence first. It was accordingly directed that defendants 2 to 4 will lead their evidence first followed by evidence of defendant no. 1.

CASE TITLE: SMT. POONAM BHANOT v. VIRENDER SHARMA & ORS.

Citation: 2022 LiveLaw (Del) 721

25/07/2022

25/07/2022

The Supreme Court observed that generally it is the wife's convenience which must be looked at while considering transfer petition under Section 24 of the Code of Civil Procedure.

"In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life", the bench comprising Justices S. Abdul Nazeer and JK Maheshwari observed.

In this case, the husband filed a petition for annulment of marriage before the Family Court, Vellore. Before the Family Court at Chennai, the wife filed two petitions, one seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, and second, a petition for maintenance under Section 125 of the Code of Criminal Procedure, 1973. Before the Madras High court, she filed a transfer petition under Section 24 of the Code of Civil Procedure seeking transfer of petition filed by her husband before the Family Court, Vellore, to the Family Court at Chennai. She submitted that her parents are old and that she is aged 21 years and not in a position to travel to Vellore through out the court proceedings without having any support. Aggrieved with the dismissal of Transfer Petition, she approached the Apex Court.

The court noted that the appellant is 21 years old and does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age, the bench noticed.

"The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer.", the bench observed.
The court also observed that is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions.

"Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.", the bench observed.
Case details

NCV Aishwarya vs AS Saravana Karthik Sha | 2022 LiveLaw (SC) 627 | CA 4894 of 2022 | 18 July 2022 | Justices S. Abdul Nazeer and JK Maheshwari

Headnotes

Code of Civil Procedure, 1908 ; Section 24 - Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer - In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. (Para 9)

Code of Civil Procedure, 1908 ; Section 24 - The cardinal principle for exercise of power under Section 24 CPC is that the ends of justice should demand the transfer of the suit, appeal or other proceeding.

Code of Civil Procedure, 1908 ; Section 24 - When two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. (Para 10-11)