A person has a right to protect his possession against any person who cannot prove a better title by seeking a prohibitory injunction #indianlaws

Apr
3
2016


Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied]. 



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Consequences of non- compliance of an order, cannot be avoided on the ground that order was void or a nullity unless declared so #indianlaws

Apr
3
2016


In the context of breach of an interim order, the order can be void or nullity but, the consequences flowing from its non­ compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity. In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground. In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not lose its efficacy only on that ground. The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal. Void order has to be so declared. The party has to approach the Court for seeking such declaration 




Writ Petitions against order passed by DRT in exercise of jurisdiction U/s 17 of the SARFAESI Act cannot be entertained #indianlaws

Apr
3
2016


Writ petition under Article 226 of the Constitution should not be entertained when the alternate remedy is available under the Act, unless exceptional circumstances are made out. The writ remedy cannot be permitted to be availed as a routine/ matter of course, but only in exceptional circumstances.Unless the Court is convinced that the case falls under the exceptional categories, the writ petition filed against the order of the Tribunal, passed in exercise of the jurisdiction under Section 17 of the SARFAESI Act, on account of the legislative intent behind the enactment of the SARFAESI Act and RDDB Act and the ratio of law laid down by the Apex Court cannot be entertained.




A party claiming adverse possession must prove that his possession is peaceful, open and continuous #indianlaws

Mar
21
2016


A party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.



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Magistrate can change or alter the charge u/s 216 Cr.PC if there is defect or something is left out #indianlaws

Mar
21
2016


Magistrate has power under Section 216 Code of Criminal Procedure to alter or modify the charge on the basis of an application filed by the informant and further the trial court can alter the charge if some evidence has come on record or on the basis of the material already on record. 




No discretion of Court to award less than the specified fine U/s. 85(a)(i)(b) of the ESIC Act #indianlaws

Mar
21
2016


The Supreme Court held that the object of creating offence and penalty under the Employees’ State Insurance Act, 1948 is clearly to create deterrence against violation of provisions of the Act which are beneficial for the employees. Non-payment of contributions is an economic offence and therefore the Legislature has not only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees under Section 85(a)(i)(b) of the Act. There is no discretion of awarding less than the specified fee, under the main provision. It is only the proviso which is in the nature of an exception where under the court is vested with discretion limited to imposition of imprisonment for a lesser term. No words are found in the proviso for imposing a lesser fine than that of five thousand rupees therefore, no interpretation is required unless there is a requirement of saving the provisions from vice of unconstitutionality or absurdity.




Contract if expressly bars award of interest pendente lite, the same cannot be awarded by the Arbitrator #indianlaws

Mar
20
2016


The Supreme Court, in this case has held that Arbitrator appointed with or without the intervention of the court, has jurisdiction to award interest, on the sums found due and payable, for the pre-reference period, in the absence of any specific stipulation or prohibition in the contract to claim or grant any such interest. Grant of pendente lite interest may depend upon several factors such as phraseology used in the agreement, clauses conferring power relating to arbitration, nature of claim and dispute referred to Arbitrator and on what items power to award interest has been taken away and for which period.




Child Marriage does not automatically become void #indianlaws

Mar
9
2016


Section 3 makes provision for avoidance of marriage by contracting party, who was a child at the time thereof, through filing a petition for annulling the marriage by such party. Section 3(3) has to be read that in the case of a male, a petition for annulment of child marriage should be filed before he completes two years of attaining twenty-one years of age. 




Grandson has no birth right in grandfather’s properties to claim partition during lifetime of his father #indianlaws

Mar
9
2016


When a male Hindu dies leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. The ancestral property of the appellant’s grandfather ceased to be joint family property (by virtue of Section 8) on the date of death of Appellant’s grandfather and the other coparceners and his widow held the property as tenants in common and not as joint tenants. Thus, on the date of the birth of the Appellant in 1977, the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. 




Power to extend time of assessment cannot be exercised after the expiry of presribed period of assessment #indianlaws

Mar
9
2016


The Supreme Court held that upon the lapse of the period of limitation prescribed, the right of the Department to assess an assesse gets extinguished and this confers a very valuable right on the assesse. If the Commissioner is permitted to grant the extension even after the expiry of original period of limitation prescribed under the Act, it will give him right to exercise such a power at any time even much after the last date of assessment. When the last date of assessment in respect of the relevant Assessment Years expired, it vested a valuable right in the assesse which cannot be lightly taken away. Section 11(10) has to be interpreted in the manner which is equitable to both the parties. It was accordingly held that power to extend the time is to be exercised before the normal period of assessment expires. SC



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