Eswaraiah v. B.S. Siddalingappa. ILR 1999 Kar 3037

Full Judgment below.

T.N. VALLINAYAGAM, J.:—Defendant No. 2 is the appellant who is aggrieved by the grant of injunction against him alone by the Courts below.

2. The facts are not in serious dispute. The plaintiffs who are the sons of one Siddamallaiah have filed a suit against their uncle Siddappa. Siddamallaiah and Siddappa being the brothers, Defendant No. 2 Eswaraiah is the person who purchased the share of Siddappa in the suit property. Claiming the entire property as joint family property belonging to joint family of Siddappa and Siddammallappa the suit for injunction came to be filed. The first defendant claim that there was a partition in the family on 16.2.76 and on the basis of the partition he is in possession of the suit property and only on that basis he has sold the property to the second defendant. Consequently, neither Siddamallaiah nor Siddappa the owners are entitled to any share in the property. The first defendant resisted the suit contending that in view of the fact that he is entitled to the value of the property there cannot be any injunction against him or against his purchaser. The second defendant claim that his purchase is valid in the eye of law and he is in possession consequently no injunction shall follow.

3. The Courts below despite holding that the possession of the suit property between the plaintiff and the first defendant deemed to be in joint possession, granted the relief of injunction on the ground that defendant No. 2 has failed to prove partition. Hence, the second appeal.

4. The question to be considered before this Court is whether the second defendant who claims under first defendant can be treated as co-owner and if that be the case whether injunction can be issued against such co-owner.

5. Even according to the learned Counsel for the appellant there is no difficulty in getting into general proposition of law that there shall not be any injunction against co-owner or persons in joint possession. Infact, the finding of the Trial Court, in respect of such a possession is as follows:

“These documents and evidence show that plaintiff is in joint possession and enjoyment of the suit schedule property by the plaintiff and defendant No. 1.”

The appellate Court confirmed and maintained the finding as follows:

“The plaintiffs contend that themselves and defendant-1 have been in lawful possession and enjoyment of the suit land and in its entirety.”

Therefore, so long, as there is joint possession even according to the claim of the plaintiff, there can never be an injunction against defendant-1.

6. Now what is the position of the second defendant. Even the I prayer for injunction is against the defendant or anybody claiming under them. Now, certainly the second defendant claims under him and this factum cannot be disputed because he is the purchaser under the registered sale deed. It is also claimed by him that he is in exclusive possession of the portion purchased by him. Therefore, prima facie on general principle of law, which is not disputed by the learned Counsel for the appellant and which cannot be disputed no injunction can lie against either defendant No. 1 or defendant No. 2.

7. There was one document Ex. D.1 which has come into operation. This is what the appellate Court says against Ex. D.1.

“It is true that there is Ex. D.1 which acknowledges the contention regarding partition and separate possession of half suit land by defendant No. 2. But, in this regard, it has to be stated that this document has come into existence in the Police Station on account of the dispute that arose between the plaintiffs and defendant-2. Having regard to its origin in the Police Station and having regard to the other documentary evidence, discussed above, in the foregoing paragraphs, this is a stray document which cannot over-weigh the other documentary and oral evidence and the circumstances discussed in the foregoing paragraphs. Therefore, from this document, defendant-2 cannot derive any benefit to contend that he has been in possession and enjoyment of half share in the suit land.”

Simply because the document is executed, it does not lose its evidentially value. So long as the document is disputed for a period of nearly 9 years this document has not been challenged. In any event, that will only go to show that the possession of the second defendant in respect of that particular portion of the property which the first defendant claim to have been in enjoyment was not disputed atleast before the authority who is there to maintain law and order.

8. Looking at any point of view, there can never be injunction against the second defendant as well. The question whether there is a partition or not is not necessary to decide in this case. In any event, the learned Counsel for the appellant relies upon the following passages in Rustomji on Registration 4th edition 104.

“But a document which is not itself the instrument of partition but is merely an acknowledgment or statement of fact that there had, in time past, been a partition between the parties, is not compulsorily registrable.”

“Thus, a mere written memorial or recital of a partition that had already taken place (i.e. of a previously completed transaction) does not require registration.

 “In dealing with cases relating to partition, the question to be determined is in effect, does the document constitute the bargain between the patties (i.e. is it a deed of partition effected in praesenti) or is it merely the record (or recital) of an already completed transaction (i.e. Partition).

According to him, if what is recorded is past transaction no registration is necessary of such record. He also relied upon the ditcum in Roshan Singh v. Zile Singh1 to the following effect.

“It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction, it is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow; (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872, (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.”

There can be no dispute that whenever the past transaction is recorded in a document and so long as the document by itself does not create any right between the parties such a document does not require registration; but only those documents under which right is created are hit by Section 17(1) of the Registration Act. In this case a reference is made by the learned Counsel for the appellant to a sale deed which he wanted to file as additional document wherein the factum of partition has been recorded and it has been made clear that what has been sold by the first defendant was a divided portion of the property. Therefore, prima facie I am satisfied that the factum of partition as relied upon by the first defendant evidences the fact that partition has taken place. But it has got to be decided between the parties if the plaintiff disputes such factum of partition. Therefore, the plaintiff is given right to question such memorandum or to claim partition in respect of the property. In any event, I am convinced that the defendant is in possession of the property which has been sold to him by the first defendant and there can be no injunction against him at the instance of the plaintiff.

9. In this view, setting aside the judgment and decree of the Courts below and answering the question in favour of the appellant this second appeal is allowed and the suit is dismissed with costs.

*          R.S.A. No. 612/1996.

1.        AIR 1988 SC 881.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Ningappa and others vs The State of Karnataka. Criminal Appeal 100059/2018 decided on 19 August 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342132/1/CRLA100059-18-19-08-2020.pdf

Relevant Paragraphs: 86. Whenever prosecution invokes Section 34 of IPC, it must be established that the criminal act  was  done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- “(i) there was common intention on the part of several persons to commit a particular crime and ii) the crime was actually committed by them in furtherance of that common intention.”

87. The essence of liability under Section 34 IPC thus can be summarized as simultaneous conscious mind of persons participating in the criminal action to bring about a particular result by a  pre-arranged  plan and acting in concert pursuant to it.

88 & 93. Judgments in Suresh v. State of U.P., (2001) 3 SCC 673 paragraphs 39, 40, 42, 44, 46, 51 relied on. Asif Khanv.StateofMaharashtra,reportedin(2019)5SCC 210 paragraphs 22 relied on. Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC 305, paragraphs 12, 13, 14 relied on.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

ಉದಾಹರಣೆ-. ಸ್ವತ್ತಿನ ಹಕ್ಕು ಬಿಡುಗಡೆ (ರಿಲೀಸ್) ದಾಖಲೆ ಖಡ್ಡಾಯವಾಗಿ ನೊ೦ದಣಿ ಆಗಬೇಕು. ಇದು ನೊ೦ದಣಿ ಆಗದಿದ್ದರೆ, ಇದನ್ನು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಸ್ವೀಕರಿಸುವ೦ತಿಲ್ಲ. ಆದರೆ ಈ ದಾಖಲೆಯಲ್ಲಿ ನೊ೦ದಣಿ ಆಗಬೇಕಾಗಿರದ ಮರಣ ಶಾಸನದ ಬಗ್ಗೆ ಉಲ್ಲೇಖವಿದ್ದರೆ, ಈ ಒ೦ದು ಅ೦ಶವನ್ನು ಸಾಬೀತು ಪಡಿಸಲು, ನೊ೦ದಣಿ ಆಗದ ಹಕ್ಕು ಬಿಡುಗಡೆ (ರಿಲೀಸ್) ಅನ್ನು ಹಾಜರು ಪಡಿಸಿ ಸ್ವೀಕರಿಸಬಹುದು. ಆದರೆ ನ್ಯಾಯಾಲಯ ಈ ಒ೦ದು ಅ೦ಶಕ್ಕೆ ಮಾತ್ರ ದಾಖಲೆಯನ್ನು ಸ್ವೀಕರಿಸಬಹುದು. ಹಾಗೂ ಇದರ ಬಗ್ಗೆ ನ್ಯಾಯಾಲಯ ನಮೂದಿಸಬೇಕಾಗುತ್ತದೆ.

Gangamma vs Rangaiah and others. Writ Petition 15209/2015 decided on 21 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346526/1/WP15209-15-21-10-2020.pdf

Facts: In a suit for declaration, the plaintiff wanted to produce unregistered release deed in which there was an admission regarding the will under which the plaintiff claimed ownership. The trial court rejected the prayer.

Relevant Paragraphs: 11. It is trite law that any document which purports or operates to create, declare, assign, limit or extinguish  any right, title or interest, in respect of an immovable property having a value of more than one hundred  rupees is compulsorily required to be registered as envisaged under Section 17 of the Registration Act, 1908 (for short, hereinafter referred to as ‘the Act’).

17. As could be seen from Section 49 of the Act, any document which is required to be registered under  Section 17 of the Act shall have no effect on any immovable property nor will it confer any power  to  adopt.

18. Sub-section (c) of Section 49 of the Act bars receiving a document which is not registered  as  evidence, if it is required to be compulsorily registrable under Section 17 of the Act or under the provisions of   the Transfer of property Act.

19. Section 17 of the Act mandates that documents relating to gift of immovable property or non testamentary instruments which create a transfer of interest in an immovable property having a value  of  more than Rs.100/- will have to be compulsorily registrable.

21. However, Sub-section (c) of Section 49 of the Act is subject to the proviso that an unregistered document affecting immovable property and required by the Act or by the Transfer of Property Act to be registered can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. The said proviso also states that an unregistered document can be received as evidence of any collateral transaction not required to be effected by registered instrument.

22. In other words, an unregistered document which normally cannot be received in evidence  can  nevertheless be received as evidence of any collateral transaction, which by itself, is not required to be effected by way of a registered instrument. To put it differently, if an unregistered document contains two transactions, one of which is required to be effected by means of a registered instrument and another transaction which is not required to be effected by any registered instrument, then the said unregistered instrument can be received as evidence of that collateral transaction. It is  therefore clear that only to this limited extent, an unregistered instrument can be received in evidence i.e., to evidence   a collateral transaction which by itself is not required to be effected by a registered instrument.

26. In my view, since the sub-section (c) of Section 49 of the Act and its proviso consciously uses the phrase ”evidence of any transaction affecting such property” and “evidence of any collateral transaction not required to be effected by registered instrument” it will have to be held that the only possible interpretation is that an unregistered document can be received as evidence in respect of any other fact which does not involve a  transfer of property (which would otherwise require registration    compulsorily).        In other words, an unregistered document can be received as evidence of some other fact which does not relate to a transfer of an interest in an immovable property.

28. Thus, if an unregistered instrument is to be  received in evidence, then, the document  can  be received in evidence only for the limited extent  of  proving a transaction or a fact which does not relate to a transfer of an interest in an immovable property.

29. I may, however, add that the Court, while receiving the said unregistered document would have to  necessarily specify that the document was  being  received only for the purpose of proving some other fact which was unrelated to the transfer of interest in an immovable property and the Court should specifically mark only that portion of the unregistered document and also specify the purpose for which it was being marked. The Court should also specifically record that the document cannot and should not be used as proof of anything connected to the transfer of an immovable property.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Ganesh Rao vs Sumana K and another. RPFC 22/2016 decided on 23 September 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343536/1/RPFC22-16-23-09-2020.pdf

Relevant portion: It is perhaps well to observe that the proceedings under Section 125 of Cr.P.C is summary in nature. In a proceeding under Section 125 of Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into.

I would observe, further, that a normal healthy person, may be fairly educated, is presumed to be capable of earning. The presumption does not extend to conclude that such earning would be sufficient to maintain such a person.

The object of Section 24 of the Hindu Marriage Act, 1955, is to enable the husband or the wife, as the case may be, who has no independent income sufficient for his or her support and the necessary expenses of any proceeding under the Hindu Marriage Act to obtain maintenance and expenses pendente lite. The proceedings under Section 24 of the Hindu Marriage Act are summary in nature. Its object is ad hoc and duration is temporary. It is not necessary to record evidence. Moreover, Sections 24, 25 of the Hindu Marriage Act and Section 18 of the Hindu Adoption and Maintenance Act, 1956, do not stand in the way of a Magistrate granting relief under Section 125 of the Cr.P.C. Section 24 of the Act is not Pari materia with Section 125 of the Cr.P.C.

It is perhaps well to observe that that Section 125 of Cr.P.C is the measure of social justice and is specially enacted to protect women and children and falls within  the   constitutional   sweep   of   Article   15(3)  re-in forced by Article 39 of the Constitution.

It will not be out of context to observe further that under Hindu Law, the maintenance of a wife by her husband is, of course, a matter of personal obligation which attaches from the moment of marriage. From the date of marriage, her home is necessarily in her husband’s home. He is bound to maintain her. The doctrine of maintenance of a wife can be traced to the smritis, and the principal Hindu commentaries upon them. These texts enjoin a mandatory duty upon the husband to maintain his wife. It imposes a personal obligation on him enforceable by the sovereign or state.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Anjanappa and another vs United India Insurance Company Ltd and others. Writ Petition 6098/2014 decided on 8 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346289/1/WP6098-14-08-10-2020.pdf

Relevant Paragraphs: 7. Chapter XII of MV Act, 1988 deals with Claims Tribunals. Section 166 relates to Application for Compensation and Section 173 relates to Appeals. There is no provision of review. Even though some of the provisions of the Code of Civil Procedure, 1908 is provided however, Order XLVII Rule 1 of CPC is not reflected in Rule 254. Therefore, one has to draw inference that MACT has no power to review its own order.

9,10,11 Union of India Vs. Smt.Shamim and others reported in 2009 ACJ (4) 2785, Uttara Soni and others Vs. Oriental Insurance Co.Ltd., and  others  reported in 2009 ACJ (1) 276, D.P.Sharma Vs. State Transport Authority reported in  the  ILR  1987 KAR 3255, Naresh Kumar and Others Vs. Government (NCT of  Delhi)  reported in (2019) 9 SCC, (2007) 5 SCC 85 in the case of Kunwar Pal Singh (Dead) BY LRs. v. State of U.P. and  Others. 416 referred to.

12. Therefore in the absence of any provision to review judgment and award, MACT has erred in reviewing its own judgment and award.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

M. Suresh vs Mahadevamma and others. Regular First Appeal 1560/2011 decided on 23 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347178/1/RFA1560-11-23-10-2020.pdf

Relevant Paragraphs: 20. The Specific Relief Act, 1963 (‘Act’ for short) has been amended by the Specific Relief (Amendment) Act, 2018 by Act No.18 of 2018, whereby Section 20 of the Act has been substituted inter alia doing away with the wider discretion of the Courts to grant specific performance introducing substituted performance of contract. In terms of the amended Act, the  concept of the jurisdiction to decree specific performance, which was discretionary, is no more available to the cases seeking relief for the breach of contracts etc., The old Section 20 of the Act has been substituted by the new amended Section 20 by Act No.18 of 2018 with effect from 01.10.2018 vide SO  4888(E)  dated  19.09.2018. 

22.The effect of the phrase ‘substitution’ has been subjected to judicial scrutiny in catena of judgments  of  the  Hon’ble  Apex  Court  and  this  Court. The same is collated to analyze the effect of the Amendment Act 18 of 2018 by way of substitution with effect from 01.10.2018, in particular to decide whether the amended Act is applicable to the pending matters.

23, 24. 25, 26, 27, 29, 30, 31 Judgments in Shamrao V. Parulekar  vs.  District  Magistrate, Thana, Bombay AIR 1952 SC 324, C. Gupta Vs. Glaxo-Smithkline Pharamaceuticals Limited (2007) 7 SCC 171, Shyam  Sunder  and  others  vs.  Ram Kumar   and   another (2001) 8 SCC 24, Govardhan M vs. State of Karnataka and Others (2013) 1 Kant LJ 437, Adhunik Steels Ltd., vs. Orissa ManganeseandMinerals(P)Ltd (2007) 7 SCC 125, Ferrodous Estates (Pvt.) Ltd., vs. P. Gopirathnam(dead)and others Civil Appeal No.13516/2015 (D.D. 12.10.2020), Girdhar Das Anandji and another vs. Jivaraj Madhavji Patel and others 1970 SCC Online Patna 10, Moulvi Hossain Mian vs. Raj Kumar Haldar AIR 1943 Calcutta 417, State of Punjab vs. Mohar Singh (1955) 1 SCR 893 referred to.

33. In the light of the aforesaid judgments, it is clear that ordinarily, the effect of amendment by ‘substitution’  is  that,  the  substituted  provision  stands repealed and the amended provision is substituted in the place of earlier provision from the date of inception of the enactment, but it is not absolutely applicable in all circumstances. If the amendment Act expressly specifies that the substituted provision shall come into force from a particular date subsequent to the date of amendment/the date the amendment come into force, the said amendment is prospective in nature notwithstanding such amendment is by way of ‘substitution’.   The   intention   of   the   legislature   being clear, no retrospective effect could be given from the date of inception of the statute. There may not be any cavil on this legal proposition relating  to  substantial law. It is well settled that the interpretation  of provisions must depend on the text and context. The  real intention of the legislature has to be gathered from the text and context. The amendment Act contemplates that  the  said  amendment  by  way  of  ‘substitution’  would come into force on such day the Central  Government may, by Notification in the Official Gazette, appoint and different dates may be appointed for different provisions of the Act, 1st October 2018 is the date appointed for the amended provisions to come into effect.

35. Accordingly, we are of the view that Section 6 of the General Clauses Act, 1897 would apply to the case on hand. As discussed earlier, the right or privilege accrued to the defendant/s under the unamended Act is a substantive right. Indisputably, such rights/privileges vested with the defendants at the time of breach of contract alleged, while filing the suit. Appeal is continuation of original suit. Thus, in our considered opinion, amendment to Section 20 being prospective in nature enforceable with effect from 01.10.2018, the same is not applicable to the pending proceedings governed and continued under the unamended provisions.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Arshad Ispat and Others vs Union of India and others. Writ Appeal 395/2020 decided on 10 July 2020. Author Justice M. Nagaprasanna.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/335508/1/WA395-20-10-07-2020.pdf

Relevant paragraphs: 13. …..Jurisdiction of the High Court under Article 226 is always equitable and discretionary. In this appeal, we are testing an order made in exercise of discretionary jurisdiction under Article 226. Therefore, the conduct of the appellants who invoked the discretionary jurisdiction under Article 226 is very relevant.

18. If the prayers sought in writ petition Nos.9687- 89/2017 are juxtaposed with the prayers sought in W.P. No.51184/2017, it becomes unmistakably clear that the reliefs sought in both the writ petitions were substantially the same. In the garb of raising a challenge to the constitutional validity of Section 6(c) of the Amendment Act of 2012, the relief sought was to quash the order of the District Magistrate dated 16^th October 2017 and confirmation of sale in favour of 6^th respondent dated 24^th August 2016. The prayer (d) in earlier W.P.Nos.9687-89/2017    and   the   prayer   (a)   in   the   later W.P.No.51184/2017 are one and the same.

20. The Amendment Act of 2012 was promulgated on 3^rd January 2013. The 1^st writ petition in W.P.Nos.9687- 89/2017 was filed by the appellants on 2^nd March 2017. This ground of challenge to the constitutional validity of the Amendment Act of 2012 was always available when they filed a writ petition at the earliest point of time.

21. Now, after all the aforestated sequence of events, entertaining this appeal will be opposed to the principles of public policy. It is in the interest of public at large that a finality should attach to the decisions pronounced by the Courts of competent jurisdiction and is also in public interest that none should be vexed twice over the same kind of litigation. Parties should not be permitted to bring fresh litigations because of new views that they may entertain every time. If this were permitted, litigations would have no end except when legal ingenuity is exhausted. The appellants filing another writ petition substantially for the same relief, substantially on the same allegation cannot be permitted, as the previous decision of this Court which has became final cannot be reopened in the present case as the earlier order passed will govern the rights and obligations of the parties.

Writ Appeal Dismissed.

Compiled by S. Basavaraj, Advocate, Daksha Legal

Shashidhara T.D. vs Dr. G. Vishwanatha. Contempt of Court Case 362/2020 decided on 3 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347023/1/CCC362-20-03-11-2020.pdf

Relevant Paragraphs: 3. As can be seen from the order dated 4^th December 2019, it is an ex parte ad interim order by which, stay was granted to the order dated 17^th September 2019. There is no specific  order passed by the learned Single Judge of reinstatement of the complainant into service.

4.…The job of the complainant comes to an end after bringing to the notice of this Court the alleged incident of breach. Whether an action is to be initiated under the said Act of 1971 is a matter to be decided by the Court. The Court always retains a discretion in such matters.

6. Paragraphs 5 and 6 of the decision of the Apex Court in the case of STATE OF J & K vs MOHD. YAQOOB KHAN AND OTHERS (1992) 4 SCC 167 extracted. “5. We find great  force  in  the  argument  of Mr Salve that so long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have  been passed. Mr Bhandare appearing on behalf of  the writ petitioner, who is respondent before us, has strenuously contended that the orders passed in the contempt proceedings should be treated to have disposed of the stay matter in the writ petition also.  He laid great emphasis on the fact that the counsel for the respondents in the writ petition had been heard before the orders were issued. He invited our attention to the merits of the claim. It is argued that the order dated March 19, 1990 must, in the circumstances, be treated to have become final and, therefore, binding on the State and the High Court was right in issuing the further direction by way of implementation of earlier order. 6. We do not agree. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future). Besides, the respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter.”

7. Paragraph 4 of the decision of the Apex Court in MOHD. IQBAL KHANDAY vs ABDUL MAJID RATHER  (1994) 4 SCC 34 extracted. – “4. The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of justice. The order dated 21-9-1992 while directing notice also required the appellant to accord promotion to the respondent as Associate Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim order is open to serious doubt. For a moment, it is not to be understood that the court has no power to pass such an order but the question is whether while granting such interim reliefs the discretion of the court has been correctly exercised?  If the writ petition is ultimately dismissed, the respondent would have gained an undue advantage of getting a promotion undeservedly. But we are not on the merits of the interim order.”

8. Apart from the interim order dated 4^th December 2019 of stay, there is no specific order passed for reinstatement of the complainant. This is a case where it is unjust to initiate contempt proceedings without giving an opportunity to the respondents to contest the prayer for interim order in the writ petition. The order of which the breach is complained of is an ex parte order. Therefore, this is not a fit case to initiate the proceedings under the said Act of 1971.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

R. Hanumatha Singh vs State of Karnataka and others. Writ Petition 54571/2018 decided on 23 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347019/1/WP54571-18-23-10-2020.pdf

Relevant Paragraphs: 9. I have given my anxious consideration to the submission made by the learned counsel for the parties and have perused the material on record, and on analysis thereof the following questions arise for my consideration: (a) Whether the petitioner is entitled to pension inclusive of qualifying service rendered in the armed forces (b) Whether the claim of the petitioner is to be turned down on account of delay and laches?

Question (a) 20 & 23. On a cumulative reading and analysis of the afore-extracted Regulations and its interpretation would lead to an unmistakable conclusion that the petitioner is entitled to the service he rendered in the Indian Air Force and the same has to be reckoned for the purposes of counting the qualifying service to determine the amount of pension that the petitioner would be entitled to. Therefore, the petitioner is entitled to addition to the qualifying service to the maximum of 5 years in terms of the Regulation 183 of the said Regulations.

Question (b) 28. UNION OF INDIA Vs. TARSEM SINGH reported in (2008) 8 SCC 648, relied on. In terms of the law laid down by the Apex Court in the aforestated judgment, a pensioner cannot be shown a closed door of this Court on the ground that he has bought his cause belatedly but cannot be granted arrears for the entire period from the date of retirement to the date of filing the petition. In terms of the Judgment of the Apex Court arrears are restricted to 3 years before filing the writ petition.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Lanson Brijesh Colaco vs Rajeev Gandhi University of Health Sciences and others. Writ Petition 10935/2020 decided on 6 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/346985/1/WP10935-20-04-11-2020.pdf

Relevant Paragraphs: 3(a) It is a matter of common knowledge that a Degree Certificate at hands is worth ten in the cupboard of the Campus, since gaining entry to portals of higher education  and for securing employment, within the country or abroad, normally depend upon the award of degrees by the universities; this Court also takes notice of some foreign universities insisting on the production of original Degree Certificates for admission to higher courses, and of their non- production possibly resulting in the loss of a valuable seat in their campus; the same is true of public employment, as well.

6(c)…..The word “convocation” is derived from the Latinword   ‘convocare’   meaning   “to   call/come together”; in the functioning of a University, the convocation ceremony is an event of conventional significance where outgoing students after completion of their academic courses, formally assemble for receiving their Degrees/Diplomas ordinarily at the hands of the dignitaries of repute who on invitation of the said University address the gathering, throwing light on the long way the students have to move  on after leaving the  campus;  it is a special day in the academic life of students who after years of hard work and dedication, secure the Degree Certificates as a token of their great accomplishment; the awardees donning traditional academic regalia walk up the stage in front of their colleagues, friends and family members who have supported them in their endeavour of acquiring knowledge; it is a defining moment in every student’s life and it gives a big boost to his/her self-esteem; in some Universities, black hats are tossed in air and the sky is filled with euphoria for complementing the glorious ceremony; it is the coming of age, the arrival of maturity, of course followed by responsibility; the ceremony makes heart go aflutter; this ceremony having a grand purpose to serve, has it’s own variants too; be that as it may.

6(d) The above statute of the respondent-university appears to have been structured for giving a formal cognition to the Ceremonial Convocation, which normally is a pre- condition for awarding degrees; the enormous significance attached to such ceremonies cannot be disregarded only for the convenience of a few students like the petitioner who may have arguable hardship in waiting for such ceremonies that  are ordinarily organised with a fair degree of regularity; however, at times their regularity & periodicity become difficult to  adhere,  because  of  the  conspiracy  of circumstances such as COVID-19 pandemic or the like, that are beyond the control of university authorities; however, the aggrieved students cannot be asked to wait in militant silence for an indefinite period of time since such waiting will have many repercussions such as, time bar of the admission to the course, non-compliance of conditions of recruitment and age bar for employment, or the like; some viable alternative has to be devised by the universities in their accumulated experience & wisdom for mitigating the likely hardship/difficulty their students/alumni are put to,  in  such  circumstances  because of delayed ceremonial convocation.

6(e) Learned Panel Counsel for the university fairly submits that although there is a provision in the statutes for handing the graduates a Provisional Degree Certificate, followed by award of degree in the convocation, a specific text may be introduced into the Provisional Degree Certificate  itself or by way of an annexure thereto, to the effect that the Provisional Degree Certificate shall be treated on par with the Award of Degree, for all practical purposes; this fair stand of the university would ease the difficulty faced by the students like the petitioner who at times indefinitely await the convocation ceremony; in addition, this court fondly hopes that the university authorities when so requested by the students/alumni, shall address  appropriate  communication to other universities/colleges/employers for easing the difficulty or doubt pending award of Degrees in the ensuing convocation ceremonies; it hardly needs to be stated  that  such graceful acts, if done timely, would add to their stature and grandeur.

In the above circumstances, this writ  petition succeeds in part; a Writ of Mandamus issues to the respondent- University to hand the petitioner a Provisional Degree Certificate of the course in question with a specific certification to the effect that the same shall be treated on par with the award of degree concerned, for  all  practical purposes.

Compiled by S. Basavaraj, Advocate, Daksha Legal.