Huligewwa and another vs Hanumanthappa. Criminal Petition 102043/2017 decided on 5 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347694/1/CRLP102043-17-05-11-2020.pdf

HELD: The role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the order of maintenance. Modification can be done only by filing an application under Section 127(2) Cr.P.C.

Relevant Paragraphs: 9. “128. Enforcement of order of maintenance. A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due.” A reading of the above Section clearly go to show that, the role of the trial Court under Section 128 Cr.P.C. is very limited and confined only for enforcement of the order of maintenance. If at all it is brought to the notice of the trial Court that the order of granting maintenance under Section 125 Cr.P.C. requires any revisit, in such an event, a necessary application or petition may required to be filed under the relevant provision of law, may be even under Section 127(2) Cr.P.C. also.

10. The petitioners in Criminal Misc.No.67/2011 had only sought for arrears of maintenance by filing a petition under Section 128 Cr.P.C. In such a proceeding, the trial Court ought not  to have proceeded to exercise its power under Section 127(2) Cr.P.C, in the absence of any specific application or request made invoking the said provision of law and in the absence of any opportunity being given to the petitioner, who would be aggrieved by passing any order under Section 127(2) Cr.P.C. Whereas, in the instant case, without there being any specific request made under Section 127(2) Cr.P.C. for cancellation of the order of maintenance and also without giving any opportunity to the petitioners and hearing them as to why the order of maintenance, which was in force in their favour, be cancelled, straight away the trial Court has proceeded to cancel the maintenance showing that it has invoked its power under Section 127(2) Cr.P.C.

11.Thus, the procedure adopted by the trial Court being detrimental to the interest of the parties and unknown to law and set aside

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Para 22. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482

Full Judgment: Rajeshbhai Muljibhai Patel v. State of Gujarat, (2020) 3 SCC 794  

R. BANUMATHI, J.— Leave granted. These appeals arise out of the impugned judgment dated 14-12-20181 passed by the High Court of Gujarat at Ahmedabad dismissing Criminal Miscellaneous Application No. 2735 of 2017 thereby declining to quash the FIR No. I-194/2016. By the same order, the High Court has allowed2 Criminal Miscellaneous Application No. 24588 of 2017 and quashed the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hashmukhbhai Ravjibhai Patel against accused Yogeshbhai Muljibhai Patel under Section 138 of the NI Act.

2. Brief facts which led to the filing of these appeals are as under: Appellant 1 Rajeshbhai Muljibhai Patel is the real brother of Yogeshbhai Muljibhai Patel who is the accused in CC No. 367 of 2016 filed under Section 138 of the NI Act by Appellant 3 Hashmukhbhai Ravjibhai Patel. Both Appellant 1 Rajeshbhai and his brother Yogeshbhai are stated to be residents of United Kingdom. In this appeal, Appellant 1 Rajeshbhai is represented through his power-of-attorney holder Appellant 2 Vipulkumar Hasmukhbhai Patel. Respondent Yogeshbhai is represented through his power-of-attorney holder another respondent Mahendrakumar Javaharbhai Patel.

3. On 8-12-2015, Appellant 3 Hasmukhbhai Ravjibhai Patel filed a criminal case being CC No. 367 of 2016 against accused Yogeshbhai under Section 138 of the NI Act. The father of Appellant 1 Rajeshbhai and Yogeshbhai had agricultural lands bearing Block/Survey Nos. 534, 536/1/A, 536/1/B, 538, 539, 540, 541/1, 542 and 543 situated at Village Fofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell his father’s land, Yogeshbhai called up Appellant 3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai. Since Appellant 3 was also planning of buying some agricultural land from the surplus funds which he had received from the sale of his agricultural land, he accepted the proposal of Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed his intention to come to India for executing the sale deed of his lands in favour of Appellant 3 and asked to pay the money to Respondent 2 Mahendrakumar Javaharbhai Patel.

4. Accordingly, Appellant 3 gave Rs 30,00,000 each on four days viz. 21-8-2010, 22-8-2010, 26-8-2010 and 28-8-2010 as part payment, the total amounting to Rs 1,20,00,000 to Respondent 2 Mahendrakumar, who issued receipts for the said payments of amount for and on behalf of accused Yogeshbhai.

5. In 2015, accused Yogeshbhai came to India and arranged meeting with Appellant 3. In the meeting, Yogeshbhai informed Appellant 3 that he has already executed a registered Sale Deed No. 1229/2013 dated 16-7-2013 in favour of one M/s Brentwood Industries India Pvt. Ltd. thereby, selling the above referred lands to that company which was agreed to be sold to Appellant 3.

6. Knowing all these facts, Appellant 3 demanded his legal outstanding debt from Yogeshbhai immediately i.e. total of Rs 1,20,00,000 and Yogeshbhai promised to refund the amount by issuing four cheques of Rs 30,00,000 each in favour of Appellant 3. Accordingly, accused Yogeshbhai issued cheques bearing Nos. 8108 and 8109 of NRO Account No. 08540107512 on 12-10-2015 and cheque Nos. 20801 and 20802 of NRE Account No. 085401000566 on 30-10-2015. As per Appellant 3, at the time of issuance of cheques, Yogeshbhai gave assurance of the clearance of above cheques.

7. Two cheques bearing Nos. 8108 and 8109 dated 12-10-2015 of NRO Account No. 08540107512 amounting to Rs 30,00,000 each were dishonoured on the same day i.e. on 12-10-2015 on the ground of “Payment stopped by the Drawer”. The third cheque was of NRE Account No. 085401000566 with cheque bearing No. 20801 dated 30-10-2015 amounting to Rs 30,00,000 and the fourth cheque was also of NRE Account No. 085401000566 with cheque bearing No. 20802 dated 30-10-2015 amounting to Rs 30,00,000. When those two cheques drawn on NRE Account No. 085401000566 were presented before the Bank on the same day i.e. on 30-10-2015, those cheques were also returned on the same day with the endorsement “Payment stopped by the Drawer”. Thereafter, Appellant 3 sent a legal notice to Yogeshbhai on 17-11-2015 demanding payment of money which notice was delivered on 23-11-2015.

8. Insofar as dishonour of cheques bearing Nos. 8108 and 8109 dated 12-10-2015 of NRO Account No. 08540107512, they were returned unpaid on 12-10-2015. The complainant issued notice on 17-11-2015 and therefore, claim qua the two Cheques Nos. 8108 and 8109 are barred by limitation under the provisions of the Negotiable Instruments Act. The complaint therefore, pertains only for Cheques Nos. 20801 and 20802 of NRE Account No. 085401000566 which were returned unpaid on 30-10-2015. Complaint under Section 138 of the NI Act against Yogeshbhai was taken on file on 5-2-2016 in CC No. 367 of 2016. On 6-9-2016, the Court of 5th Additional Civil Judge & JMFC, Bharuch issued a bailable warrant for production of accused Yogeshbhai.

9. Appellant 3 Hasmukhbhai has filed Special Summary Suit No. 105 of 2015 before the Additional Chief Judicial Magistrate, Vadodara for recovery of Rs 1,20,00,000 under Order 37 CPC. Summary Suit No. 105 of 2015 filed by Appellant 3 was based on the four receipts issued by Respondent 2 Mahendrakumar. The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 1-11-2015. According to the respondents, they came to know about those four receipts only after they have been served with summons in the said suit.

10. Alleging that the appellants have forged and fabricated the four receipts, Respondent 2 Mahendrakumar has filed the complaint for cheating and forgery against the appellants. Based on the said complaint, FIR No. I-194/2016 was registered against the appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. Respondent 2 Mahendrakumar has alleged that the appellants joined together and prepared fabricated receipts of Rs 1,20,00,000 bearing forged signature of Respondent 2 and produced these forged receipts as true.

11. In the FIR, it was averred that Yogeshbhai, who is residing in United Kingdom had executed a power of attorney dated 14-3-2013 in favour of Mahendrakumar for administration of his lands. On the basis of this power of attorney, Mahendrakumar executed an agreement to sale in favour of one Jigneshbhai Dhanesh Chandra Shah on 16-4-2013. Thereafter, Yogeshbhai came from London and executed a registered Sale Deed No. 1229/2013 dated 16-7-2013 in favour of M/s Brentwood Industries India Pvt. Ltd. for Rs 6,16,44,000. In the sale deed, the agreement to sale holder has signed as confirming party. In consideration of the sale deed, the landowner was to receive Rs 6,16,44,000 and the confirming party-Jigneshbhai was to receive Rs 1,13,94,000. Yogeshbhai is the elder brother of Appellant 1 Rajeshbhai. Appellant 1 had filed a Special Civil Suit No. 284 of 2013 before the Court of Principal Civil Judge, Bharuch claiming his share in the said land sold by Yogeshbhai. In the said suit, Yogeshbhai, his mother Kanchanben, Respondent 2 Mahendrakumar and Jigneshbhai were arraigned as defendants. The said suit was compromised between Appellant 1 and Yogeshbhai in London and Yogeshbhai was to pay Rs 90,00,000 to Rajeshbhai Appellant 1. Appellant 1 agreed to issue NOC and promised that his power-of-attorney holder Appellant 2 Vipulkumar Hasmukhbhai Patel will issue NOC. Accordingly, Yogeshbhai had come from London and his power-of-attorney holder Appellant 2 Vipulkumar had executed NOC letter in presence of Notary H.J. Zala on 23-9-2015. There was various correspondence between the parties and the company M/s Brentwood Industries India Pvt. Ltd. regarding payment of said Rs 90,00,000.

12. Appellants 1 to 3 filed Criminal Miscellaneous Application No. 2735 of 2017 before the High Court under Section 482 CrPC for quashing of FIR No. I-194/2016. Yogeshbhai who is the accused in the criminal case being CC No. 367 of 2016 also filed Criminal Miscellaneous Application No. 24588 of 2017 for quashing of cheque case filed against him under Section 138 of the NI Act. Yogeshbhai claimed that he has given the cheques to Appellant 3 Hasmukhbhai who approached him requesting for help to purchase land. Yogeshbhai alleged that the appellants have forged the receipts issued by Respondent 2 Mahendrakumar. In this regard, Yogeshbhai placed reliance upon the report of the handwriting expert, Directorate of Forensic Science dated 15-12-2016 as per which, the disputed signatures of Mahendrakumar Javaharbhai on the receipts were not written by him i.e. Respondent 2 Mahendrakumar Javaharbhai.

13. Vide the impugned judgment dated 14-12-20181, the High Court dismissed Criminal Miscellaneous Application No. 2735 of 2017 and declined to quash FIR No. I-194/2016. The High Court held that on the basis of four receipts allegedly issued by Mahendrakumar, the third appellant Hasmukhbhai has filed Summary Suit No. 105 of 2015 for recovery of Rs 1,20,00,000. The High Court referred to the handwriting expert’s opinion who has opined that the signatures found in the receipts do not tally with the signature of Respondent 2 Mahendrakumar. The High Court held that looking into the allegations and the facts, prima facie case of forgery and cheating are made out against the appellants and accordingly, declined to quash FIR No. I-194/2016 and dismissed Criminal Miscellaneous Application No. 2735 of 2017.

14. On the basis of the order passed in Rajeshbhai Muljibhai Patel v. State of Gujarat1, Criminal Miscellaneous Application No. 24588 of 2017 filed by Yogeshbhai was allowed2 and the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act was quashed. The High Court held that based on the alleged forged receipts, criminal case has been filed under Section 138 of the NI Act and the cheque case cannot be proceeded with and accordingly, quashed the criminal case in CC No. 367 of 2016 filed under Section 138 of the NI Act. Being aggrieved, the appellants have filed these appeals.

15. Mr D.N. Parikh, learned counsel for the appellants, has submitted that the High Court has failed to appreciate that the FIR lodged by Respondent 2 Mahendrakumar is false and frivolous as the same subject-matter is pending consideration in Summary Suit No. 105 of 2015. It was submitted that at least two cases viz. Special Summary Suit No. 105 of 2015 and criminal case in CC No. 367 of 2016 filed under Section 138 of the NI Act are pending before the competent court and while so, the criminal case could not have been registered on the four receipts which are the subject-matter of the pending litigations between the parties. It was further submitted that in Summary Suit No. 105 of 2015, Issue 5 framed by the Court is “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts” and the FSL report-report of the handwriting expert is filed in the said suit and the civil court is yet to determine the issue as to the genuineness of the receipts. The learned counsel submitted that the High Court has failed to appreciate that the opinion of the handwriting expert is relevant evidence, but it is not a conclusive evidence and Section 73 of the Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming Court’s opinion. It was contended that when the genuineness of four receipts is an issue in the civil suit and the dispute is of civil nature, the continuation of the criminal case is an abuse of process of the court and FIR No. I-194/2016 is liable to be quashed. It was also contended that the High Court erred in quashing the cheque case filed under Section 138 of the NI Act and the High Court did not keep in view that issuance of cheques by Yogeshbhai from his NRE account has been admitted.

16. Refuting the above contentions, Ms Aishwarya Bhati, learned Senior Counsel for the respondents, has submitted that Appellant 3 Hashmukhbhai is the maternal uncle of Yogeshbhai and relying upon the words of Appellant 3 and his son Appellant 2 Vipulkumar, Yogeshbhai issued two cheques bearing Nos. 8108 and 8109 for Rs 30,00,000 each from his NRO account and after issuing the cheques, Yogeshbhai realised that there were no funds in the said account and he asked Appellant 3 to return the above cheques and collect new cheques of another account. It was submitted that thereafter Yogeshbhai issued new cheques of NRE account bearing Nos. 20801 and 20802 of Rs 30,00,000 each and at that time, Appellant 3 had told that he had not brought the old cheques with him and will return the old cheques in a day or two but never returned the cheques. The learned Senior Counsel submitted that Yogeshbhai got suspicious and on making enquiry, he found that Appellants 2 and 3 were not intending to purchase any lands and thus, he has instructed the Bank to stop payment for all the four cheques. The learned Senior Counsel further submitted that the appellants made four forged receipts of Rs 30,00,000 each by forging the signatures of Respondent 2 Mahendrakumar and the handwriting expert opined that four receipts relied upon by Appellant 3 Hasmukhbhai have not been signed by Respondent 2 Mahendrakumar and on the basis of FSL report, FIR No. I-194/2016 has been registered under Sections 406, 420, 465, 467, 468, 471 and 114 of the Penal Code, 1860. It was submitted that since there is a prima facie case of forgery and cheating made out against the appellants, the High Court rightly declined to quash the FIR and the impugned order warrants no interference.

17. We have carefully considered the submissions and perused the impugned order and other materials on record.

18. The issue relates to the alleged forgery of four receipts dated 21-8-2010, 22-8-2010, 26-8-2010 and 28-8-2010 each for a sum of Rs 30,00,000 totalling to Rs 1,20,00,000 issued by Respondent 2 Mahendrakumar. For the recovery of the amount of Rs 1,20,00,000, Appellant 3 Hasmukhbhai filed Special Summary Suit No. 105 of 2015 in October 2015. After receiving summons in Summary Suit No. 105 of 2015, Respondent 2 Mahendrakumar entered appearance and filed application seeking leave to defend and the said application was allowed on 19-4-2016. On application filed by Appellant 3 Hasmukhbhai in Summary Suit No. 105 of 2015, four receipts were sent to forensic science laboratory for obtaining the opinion of handwriting expert. The handwriting expert’s report was received in the Court on 15-12-2016 to the effect that all the four receipts were not signed by Respondent 2 Mahendrakumar. It was thereafter on the complaint filed by Respondent 2, FIR No. I-194/2016 dated 28-12-2016 was registered against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC.

19. In CC No. 367 of 2016, case of Appellant 3 Hasmukhbhai is that Yogeshbhai issued four cheques each for a sum of Rs 30,00,000, details of which are as under:

On presentation, the above cheques were dishonoured on the ground “Payment stopped by the Drawer”. After issuing the legal notice, Appellant 3 Hasmukhbhai filed criminal case in CC No. 367 of 2016 on 8-12-2015 pertaining to two cheques bearing Nos. 20801 and 20802. It was only thereafter, Respondent 2 Mahendrakumar had filed the criminal complaint dated 20-3-2016 and also filed another criminal complaint dated 14-4-2016 against Appellant 1 Rajeshbhai and Appellant 2 Vipulkumar. Since the police had not registered the FIR, Respondent 2 filed SCRAs Nos. 5945 and 6349 of 2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dated 4-10-20163 and 6-9-20164 disposed of those petitions directing the police to investigate into the matter.

20. Be that as it may, in Summary Suit No. 105 of 2015, leave to defend was granted to Respondent 2 Mahendrakumar on 19-4-2016. On the application filed by Appellant 3 in the said Summary Suit No. 105 of 2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent 2 Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. I-194/2016 was registered on 28-12-2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in Summary Suit No. 105 of 2015, Issue 5 has been framed by the Court “whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts”. When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.

21. It is also to be pointed out that in terms of Section 45 of the Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to Appellant 3-plaintiff to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Evidence Act empowers the court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No. I-194/2016, in our view, would amount to abuse of the process of court and the petition filed by the appellants under Section 482 CrPC in Criminal Miscellaneous Application No. 2735 of 2017 to quash FIR No. I-194/2016 is to be allowed.

22. The High Court, in our view, erred in quashing the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the NI Act in favour of the holder of cheque that is the complainant Appellant 3. The nature of presumptions under Section 139 of the NI Act and Section 118(a) of the Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no legally enforceable debt and he issued the cheques to help Appellant 3 Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of the NI Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482 CrPC. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the NI Act on the legal issues like limitation, etc. criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ought not to have been quashed merely on the ground that there are inter se disputes between Appellant 3 and Respondent 2. Without keeping in view the statutory presumption raised under Section 139 of the NI Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016 filed under Section 138 of the NI Act.

23. In the result, the impugned order is set aside and these appeals are allowed. Criminal Miscellaneous Application No. 2735 of 2017 filed by the appellants is allowed and FIR No. I-194/2016 is quashed. Criminal Miscellaneous Application No. 24588 of 2017 filed by Yogeshbhai Muljibhai Patel stands dismissed. Case filed by Appellant 3 Hasmukhbhai Ravjibhai Patel under Section 138 of the NI Act — CC No. 367 of 2016 stands restored. The 5th Additional Civil Judge & JMFC, Bharuch is directed to proceed with the case in CC No. 367 of 2016 filed under Section 138 of the NI Act and afford sufficient opportunity to both the parties and dispose of the same in accordance with law. Summary Suit No. 105 of 2015 shall be proceeded in accordance with law without being influenced by any of the views expressed by the High Court in the impugned order.

Arising out of SLPs (Crl.) Nos. 142-43 of 2019. Arising from the Judgment and Order in Rajeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4722 (Gujarat High Court, R/Criminal Miscellaneous Application No. 2735 of 2017, dt. 14-12-2018) and Yogeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4771 (Gujarat High Court, R/Criminal Miscellaneous Application No. 24588 of 2017, dt. 14-12-2018)

1.Rajeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4722

2.Yogeshbhai Muljibhai Patel v. State of Gujarat, 2018 SCC OnLine Guj 4771

3. Mahendrabhai Jawaharbhai Patel v. State of Gujarat, 2016 SCC OnLine Guj 4802

4. Yogesh Muljibhai Patel v. State of Gujarat, 2016 SCC OnLine Guj 3254

Compiled by S. Basavaraj, Advocate, Daksha Legal

P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314. “It is well settled that in order to establish adverse possession of one co-heir as against the other, it is not enough to show that one out of them is in sole possession and enjoyment of the profits. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of co-heir is considered, in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs’ title. It is settled rule of law that as being co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”

Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597. Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.

Vidya Devi v. Prem Prakash, (1995) 4 SCC 496.27. From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case5 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.

Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271. 31. In Vidya Devi v. Prem Prakash3 this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28) “27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case4 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600. 10. In Mohaideen Abdul Kadir v. Mohd. Mahaideen Umma their Lordships held that no hard-and-fast rule can be laid down. But the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession, denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right.

Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791. 17. Strong reliance has been placed by Mr Banerjee on a judgment of the Bombay High Court in Bhaguji Bayaji Pokale v. Kantilal Baban Gunjawate4 wherein it was held: (AIR p. 117, para 8) “8[7]. With regard to second substantial question of law i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants has relied upon the Apex Court’s judgment in Mohd. Baqar v. Naim-un-Nisa Bibi5. The Apex Court has very categorically held in para 7 as under: (AIR p. 550) ‘7. … The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.’ ” It was observed: (AIR p. 117, para 10) “10. … Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well-settled law.”

S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 81. In the light of the aforesaid undisputed facts and the judgments of the Apex Court, it is clear that unless the person asserting title by adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if “the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co-owner, asserts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the Trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set-up. Therefore, we do not see any infirmity in the said finding recorded by the Trial Court.

Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434. 24. This Court in Vidya Devi v. Prem Prakash (1995) 4 SCC 496 held that: (SCC p. 505, para 28) “28. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Rajashekar vs State by Banavasi PS. Criminal Petition 8846/2015 decided on 3 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347381/1/CRLP8846-16-03-11-2020.pdf

Relevant Paragraphs: 12. In the instant case, the second respondent who  is a defacto complaint initiated criminal prosecution against the petitioner who is arraigned as accused by registering private complaint in PCR No.13/2015 based upon which Crime No.111/2015 came to be registered by the first respondent for the aforesaid offences. As already stated in detail that the petitioner/accused when he presented cheque which was issued by the second respondent for a sum of Rs.6,60,000/- at his banker Corporation Bank, Shiralakoppa branch, Shikaripura Taluk, Shimoga, the said cheque was returned with a  shara stating “ insufficient fund” and “signature differs”. This ground was also urged in this petition for seeking intervention of the criminal prosecution initiated against the petitioner/accused. The petitioner/accused is a close relative of second respondent and also a progressive agriculturist who approached the second respondent offering to cultivate the land belonging to him.

13. Further the offence alleged against the petitioner under Section 418 of IPC that the petitioner has cheated the second respondent is also not correct as  the  allegations made in the complaint does not attract the ingredients of Section 418 of IPC. Similarly the ingredients of Sections 420 and 468 of IPC also does not attract in the present case. These are all the facts that reveals in the materials available on record.

14. It is relevant to refer the scope and object of Section 482 of Cr.P.C. which deals with the inherent powers of the Court which has to be exercised judicially, judiciously, sparingly and cautiously, if not, there shall be miscarriage of justice and so also, abuse of process of law. While exercising the jurisdiction under Section 482 of Cr.P.C. the Court would not ordinarily embark upon an enquiry whether evidence in question is reliable or not  or whether on a reasonable appreciation of it, the accusation would not be sustained.  Section 482 Cr.P.C it is only to intervene with judicially and judiciously in order to avoid the abuse of process of law and also to secure the ends of justice.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Syed Asif Ali and another vs The State of Karnataka and another. Criminal Petition 2614/2017 decided on 5 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/347386/1/CRLP2614-17-05-11-2020.pdf

Relevant Paragraphs: 9. Section 482 of Cr.P.C. include powers to quash  FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and  are of wide magnitude and ramification. Such powers can  be exercised to secure ends of justice, prevent abuse of the process of  any court and to make such orders as may  be necessary to give effect to any order under this Code, depending upon the facts of a given  case.  The  Court  should take note of any miscarriage of justice and prevent the same by exercising its powers under  Section  482  of  the Code. However, such inherent powers are to be exercised judicially, judiciously, sparingly and cautiously.

10. Even though the case against these accused have been proceeded with facing of trial for the aforesaid offences, it is nothing but formalities and closing of the case. Therefore, circumstances warrant this court to intervene by exercising the inherent power under Section 482 of Cr.P.C., if not, there shall be miscarriage of justice and also abuse of process of law. However, consciously the materials have been looked into and rescanning has been done. When once the co- accused have been acquitted, the same benefit shall be accrued to these petitioners also. Then only constitutional protection under Article 21 of Constitution of India shall be enshrined, if not, certainly there shall be miscarriage of justice.

Compiled by S.Basavaraj, Advocate, Daksha Legal.

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.