A second complaint to the District Forum is maintainable when the first complaint was dismissed for default #indianlaws

Jan
31
2016


There is no provision parallel to the provision contained in Order 9 Rule 9(1) Code of Civil Procedure which contains a prohibition that if a suit is dismissed in default of the Plaintiff under Order 9 Rule 8, a second suit on the same cause of action would not lie, in the Consumer Protection Act. That being so, the rule of prohibition contained in Order 9 Rule 9(1) Code of Civil Procedure cannot be extended to the proceedings before the District Forum or the State Commission. Therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.

 




Common Areas cannot be converted into parking areas on the insistence of a society resident #indianlaws

Jan
31
2016


Parking in the common area, would not convert such areas into parking areas. Such circulation and common areas are meant for the utilisation by all and cannot be appropriated, even temporarily by any person for the purposes of parking their vehicles.

It was held as essential to ensure that the circulation space, in the nature of path ways in the society is kept free and vacant at all point of time for the security of the members of the society to ensure access to emergency vehicles including fire tenders, ambulances and police vehicles at all points of time. The court further held that General Body is empowered to approve welfare schemes which are for the benefit of the members of the society as well as their families. It is in the welfare of all occupants in the society that free access unobstructed by parked vehicles is available to emergency vehicles to their flats. The sanctioned building plan permits parking only for one car per flat. The levy of penalty for bringing in extra vehicles has to be considered a welfare scheme for the benefit of the members of the society and their families and covered under the powers of the General Body within the stipulations contained in the statute and the Rules.




Provisions of the SARFAESI Act cannot be used to override the provisions of Rent Control Act #indianlaws

Jan
31
2016


Supreme Court held that a landlord cannot be permitted to do indirectly what he has been barred from doing under the Rent Control Act, more so when the two legislations, that is the SARFAESI Act and the Rent Control Act operate in completely different fields.  The provisions of the SARFAESI Act cannot be used to override the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant.




Giving of dowry and traditional presents does not always raise a presumption that it’s custody is with in-laws #indianlaws

Jan
31
2016


The Court clarified that giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. In respect of ‘stridhana articles’ given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house and used by her in her matrimonial house. Accordingly, it could not be held that dowry was given to groom’s parents and sisters who were living separately from the couple and they were duty bound to return the same to the deceased.

In the absence of specific allegations of entrustment of the dowry amount and articles to the in-laws, continuation of criminal proceeding against Appellants was held to be unjust and improper. 

The court further observed that power under Section 482 Cr.P.C. should be sparingly exercised in rare cases. When a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is to determine as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. The Court must take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.

 




In the absence of pleading, evidence, if any, produced by the parties cannot be considered #indianlaws

Jan
20
2016


Supreme Court observed that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It was further observed that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question.

Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. 




Application of mind is sine qua non for a valid sanction for initiating criminal proceedings against a public officer #indianlaws

Jan
20
2016


Obtaining sanction is a precursory sacrosanct step to initiate criminal proceedings against public officer, and the lack of a valid sanction precludes the court from taking cognizance of the offence alleged.




In a Contract of Insurance, Parties (insurer/insured) can themselves decide on benefits #indianlaws

Jan
20
2016


A contract of insurance is one of the species of commercial transaction between the insurer and insured. It is for the parties (insurer/insured) to decide as to what type of insurance they intend to do to secure safety of the goods and how much premium the insured wish to pay to secure insurance of their goods as provided in the tariff. If the insured pays additional premium to the insurer to secure more safety and coverage of their insured goods, it is permissible for them to do so. Rule of contra proferentum applies only when there is ambiguity in the policy. This rule becomes operative where the words are truly ambiguous; it is a rule for resolving ambiguity and it cannot be invoked with a view to creating a doubt.




Reserve Bank cannot deny information sought under Right to Information Act, 2005 #indianlaws

Jan
20
2016


RTI Act is enacted to empower the common people, the test to determine limits of Section 8 of RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? Supreme Court observed that the Public Information Officers (PIO) under the guise of one of the exceptions given under Section 8 of RTI Act, cannot evade from the general public,the rightful information that they are entitled to.The Legislature’s intent was to make available to the general public such information which had been obtained by the public authorities from the private body. Had it been the case where only information related to public authorities was to be provided, the Legislature would not have included the word “private body”.

RBI does not place itself in a fiduciary relationship with the Financial institutions because, the reports of the inspections, statements of the bank, information related to the business obtained by the RBI are not under the pretext of confidence or trust. It is supposed to uphold public interest and not the interest of individual banks. RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country’s economy and the banking sector. Thus, RBI ought to act with transparency and not hide information that might embarrass individual banks.




Filing of false criminal complaint by either spouse constitutes matrimonial cruelty entitling other spouse to claim divorce #indianlaws

Jan
11
2016


It was observed by the High Court that if the complaint filed by the wife against the husband under section 498- A of IPC and other related provisions was dismissed on merits and the husband and his family members are acquitted,it clearly amounts to cruelty committed by the wife upon the husband. Also, when wife treated the husband with cruelty and such allegations having been proved, she at the same time could not maintain her application for restitution of conjugal rights by filing an application under section 9 of the Hindu Marriage Act, 1955.




If the conclusion on the facts in evidence made by the court below is possible, there is no perversity #indianlaws

Jan
11
2016


It is well settled that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. Further, in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. The trial court had given definite finding on structural alteration done by the tenant which was also endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which was a pure question of fact.








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