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Case Laws
Showing 1 to 20 of 42 Records
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1966 (12) TMI 79 - MADRAS HIGH COURT
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... ... ..... e prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the suit. 6. In the light of the such judicial precedents and the principles laid down above, I do not see any justification for the proposed party herein being added as a regular party. I do not agree with the observations of the Subordinate Judge that the proposed party is a proper party. I have already given my reasons. If the proposed party is not a proper party, the Court has no jurisdiction to add him as a party to the suit. Therefore, there is an error apparent in the judgment of the lower Court. I, therefore, set aside the order of the Subordinate Judge who directed that the party proposed by the respondent be added as a regular party to the suit. The revision petition is allowed, but in the peculiar circumstances of this case, there will be no order as to costs. 7. Petition allowed.
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1966 (12) TMI 78 - ALLAHABAD HIGH COURT
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... ... ..... ntment was defective, nevertheless under colour of office or title in fact participated in the act or proceeding. Sub-section (1) deals with a vacancy in fact as well as in law, while Sub-section (2) treats of a vacancy in law but participation in fact. Accordingly, this contention of Mr. Khare must be rejected. 24. Finally, Mr. Khare contends that the remedy of the two members lay in a suit for damages and they should have been denied relief upon the petitions under Article 226. It seems to us that when the fate of the proceeding under Section 87-A depends upon the validity of the orders of removal, to relegate the dispute to a suit for damages would he to frustrate a proceeding which seriously affects the democratic constitution and administration of the Board and in which Sanaullah Sardar and Mohammad Yusuf are only two of many players on the stage 25. In the result, we agree with the learned Single Judge in the order made by him. and dismiss this special appeal with costs
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1966 (12) TMI 77 - ANDHRA PRADESH HIGH COURT
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... ... ..... ent case, there is an initial presumption that the alleged grounds Nos. 12 and 13 which were mentioned in the appeal Memo in A. S. No. 7 of 1959 and which relate to the alleged settlement were not pressed before the learned District Judge during the arguments by the learned advocate when he argued the case and that the District Judge did not in any way jail in his duty to observe correct procedure by his failing to frame a point or give a finding regarding the alleged settlement. This presumption has not been rebutted. Such being the case, the contention of the learned Advocate that the lower appellate Court has failed in its duty in not deciding the question concerned in Additional Issue No. 3 which was mainly a question of fact, is untenable and it fails. 24. No other grounds are urged before me 25. In the circumstances, I dismiss the second appeal with costs. No leave. 26. The Court-fee due to the Government on the memorandum of second appeal will be paid by the appellant.
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1966 (12) TMI 76 - SUPREME COURT
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... ... ..... sputed writings on the applications are so clearly written by the same person that one hardly needs expert guidance. Numerous idiosyncrasies in one are faithfully reproduced in the other and leave no manner of doubt as to the authorship of the applications. They were written by the Appellant. As the applications are ostensibly by different persons the conclusion is inescapable that Fakhruddin was making applications in diverse names and collecting iron sheets in this manner. Once the offence of forgery is established the proof of the other offence is clear. Fakhruddin's conviction for the offences other than conspiracy was therefore soundly grounded. 15. In the result his appeal fails except for his acquittal for the offence of conspiracy. That however does not help him as the sentences were made concurrent. The appeal will therefore, stand dismissed but the conviction and sentence, Under Section 120-B, IPC will be quashed. The other convictions and sentences will stand.
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1966 (12) TMI 75 - DELHI HIGH COURT
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... ... ..... short ground of denial of nature justice. The decision of the various authorities constituted under the said Act went against the petitioner on the ground that in view of the Section 178-A of the Sea Customs Act, the burden lay on the petitioner to prove that the gold was not smuggled. He should have been, as I have indicated above, afforded the necessary opportunity to summon the materials and it is not disputed that the materials asked for by him were relevant to the enquiry. I would like to observe that in all such matters a dedicated devotion to rule of law is expected of the authorities exercising judicial or quasi-judicial powers. The demands and the claims of natural justice cannot be treated with scant respect. The circumstances of this show that there has been a clear violation of natural justice. (6) In these circumstances, this petition must be allowed and the impugned orders quashed. The petitioner will have the costs of these proceedings. (7) Petition dismissed.
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1966 (12) TMI 74 - MADRAS HIGH COURT
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... ... ..... d in certain circumstances, the period prescribed falls over a longer period than the time prescribed without exclusion. If, therefore, an acknowledgment is within the period of limitation prescribed, but as computed after exclusion, we do not see why it is not within the ambit of S. 19. On that view, we think that the suit is within time. 6. The view we have taken receives support from Sambayya v. Peddasubbayya AIR 1938 Mad 19 and Subbaraya v. Eswaramurthy, AIR 1936 Mad 202. These two cases no doubt, relate to exclusion of time under different enactments, but, in our opinion the principle is the same. Maqbul Ahmed v. Onkar Pratap Narain Singh and Jayarama Aiyar v. Rajagopalan. AIR 1965 Mad 459 to which Mr. Raghavan made reference, do not assist him, as they were concerned with the applicability of S. 4. 7. The appeal is allowed. The decree and judgment of the court below are set aside and the suit is decreed with costs here and the Court below. VGW/D.V.C. 8. Appeal allowed.
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1966 (12) TMI 73 - KERALA HIGH COURT
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... ... ..... e learned counsel for the petitioner will be to allow the petitioner to take advantage of the wrong decision which is attributable to the mistake of the 1st respondent. The assessment of qualifications on the date on which the Regional Transport Authority considers the applications, must be without any reference to the previous erroneous decision granting the permit and the consequence which arose therefrom. If so the benefit gained by the petitioner as a result of the mistake cannot be used to the detriment of the second respondent at a subsequent stage of the same proceeding. Such experience may perhaps be a factor to be considered in the interest of public under Section 47 (1) (a) of the Motor Vehicles Act, 1939, under other circumstances; but it cannot be allowed to override the maxim "Actus curiae neminem gravabit". 12. In this view, Ext. P-1 order does not call for any interference. The petition is there fore dismissed but in the circumstances with out costs.
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1966 (12) TMI 72 - MYSORE HIGH COURT
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... ... ..... clusion that the partnership was not a genuine one. All that the Tribunal says is that "taking into consideration all the relevant facts and the manner in which the rights and obligations of the persons inter se are defined ........", it was unable to say that the working partners were really partners. In the light of the foregoing discussion, it becomes clear that not only was there no material in support of the conclusion of the Tribunal but that such material as there is points to the partnership being a genuine one rather than otherwise. We, therefore, answer the question referred to us in favour of the assessee as follows On the facts and in the circumstances of the case, the Tribunal was not right, on the material placed before it, in holding that the firm constituted under the partnership deed dated March 12, 1951, is not a genuine firm ; on the contrary, it should have held that the firm was a genuine one. The assessee will have the costs of this reference.
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1966 (12) TMI 71 - DELHI HIGH COURT
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... ... ..... y the sale of evacuee property in question was made void came into force long before 8-12-1952 with the result that the appellant's application cannot be saved on the basis of the alternative argument founded on section 36 (a) of Act LXX of 1951. This submission accordingly fails. 9. I may before closing point out that though in the judgment of the learned Tribunal there is a mention of the property in question having been subsequently sold by the vendor-company to the Punjab Sugar Mills Company and a claim having been verified at the instance of the subsequent vendee, no point has been sought to be founded at the bar on this aspect 10. In view of the foregoing discussion, this appeal succeeds in part and we allow the vendee's claim with respect to the earnest money amounting to ₹ 20,000. The impugned order is modified to that extent In the peculiar circumstances of this case, the parries are left to bear their own costs throughout. K.S. Hegde, C.J. 11. I agree
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1966 (12) TMI 70 - SUPREME COURT
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... ... ..... r indicated. It is admitted that his land has been reduced to something less than the ceiling applicable to him. It is contended that what is acquired is a small bit from each landholder and that is not of much significance. We do not know what rule is in contemplation. If it is the de minimis rule, we can only say that it would be a most unsatisfactory mode of avoidance of the constitutional provision. What is a small bit is a vary vague and uncertain expression. The safe rule is that the Constitution means what it says, that is, land within the ceiling is not to be touched unless compensation at market rate is given. We would, therefore, reject the plea that we should ignore these small bits of land especially as they will be used for the general good and will confer some benefit also upon those who will lose them. We would accordingly allow the appeal with costs. ORDER In accordance with the Opinion of the majority Civil Appeal No. 1018 of 1966 is dismissed without costs.
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1966 (12) TMI 69 - COURT OF APPEAL
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... ... ..... continues to carry on. Even if the compensation payable for loss of the capital asset has been calculated in whole or in part by taking into consideration what profits he would have made had he continued to carry on a trade involving the use or exploitation of the asset, this does not alter the identity of what the compensation is paid for, to wit, the permanent removal from his business of a capital asset which would otherwise have continued to be exploited in the business see the Glenboig case 1922 S.C. (H.L.) 112. Furthermore, even if any part of the compensation so calculated were treated as paid for the trader's failure to receive such profits, the claim to treat it for income tax purposes as profits from the use or exploitation of the asset would fail in the course of solving the second problem, since the use or exploitation of the asset has ex hypothesi ceased to form part of the trade carried on at the time of receipt. I agree with the order proposed by my lord.
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1966 (12) TMI 68 - SUPREME COURT
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... ... ..... e petition before November 7, 1961. These circumstances have not been considered by Mathur, J., nor have they been considered by the High Court. They appear to have exalted a rule of practice into a rule of limitation, and rejected the petition of the appellants without considering whether the appellants could be said to be guilty of laches or undue delay. It may be mentioned that apart from the ground that the petition was not presented within ninety days, there is nothing which indicates that the appellants were guilty of laches or undue delay, nor are there grounds which justified the High Court in holding that it would be unjust to permit a departure from the practice of the Court. The appeal will therefore be allowed and the order of the High Court set aside. The proceedings will be remanded to the High Court for hearing and disposal according to law. There will be no order as to costs in this Court. The costs in the High Court will be costs in the cause. Appeal allowed
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1966 (12) TMI 67 - SUPREME COURT
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... ... ..... license for 1960-61. The State was therefore rightly convicted by the High Court under s. 541(1). In the judgment of the High Court it is stated by inadvertence that the conviction was under s. 537, but from the materials on the record it is clear that the High Court intended to pass the order of conviction under s. 541. It was argued that the State was the owner of a market and did not carry on any business. it was suggested that the trades, if any, in the market were carried on by the stall-holders and not by the Government. But the High Court has recorded the finding that the Government carried on a trade. In this appeal under Art. 136 of the Constitution, I do not propose to interfere with this finding Of fact. This judgment will not preclude the Government from proving in any future case that it is not carrying on any trade or business at 1, Orphanage Road, Calcutta, The appeal is dismissed. ORDER In accordance with the opinion of the majority, the appeal is dismissed.
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1966 (12) TMI 66 - SUPREME COURT
Whether the detention is legal or illegal?
Held that:- GSR 1276 was issued on 27-8-1965 .amending the earlier order by including Art. 14 therein. After 27-8-1965, therefore, no foreigner has the right to move the Court though his fundamental right under Art. 14 of the Constitution is violated. In that sense, the order is not retrospective but prospective. It only operates on the right of a person to move the Court.As the petitioner in the present case filed his petition on 12th May, 1966, that is subsequent to the promulgation of the order, he has ceased to have any right to move this Court. The fact that he complained of his detention for a period earlier to that date has no bearing on the question of the maintainability of the petition.
The order of detention dated 18th September, 1964 reads: "In exercise of the powers conferred by sub-section (1) read with clause (g) of sub-section (2) of section 3 of the Foreigners Act, 1946 (31 of 1946) the Central Government hereby orders that Shri Ghulam Mohuddin a Pakistani National shall be arrested and detained until further orders." Clause (g) enables the Central Government to make an order detaining a foreigner. The clause does not narrate the reasons for which he can be detained. If, as the respondent says, the petitioner is involved in a serious case of conspiracy to smuggle gold and on that account his detention in India was necessary to make further investigation with regard to his conduct, we do not see why the wide power conferred on the Central Government to detain him under clause (g) could not be invoked. There is no merit in this contention also. Appeal dismissed.
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1966 (12) TMI 65 - SUPREME COURT
Whether the first respondent pledged certain quantity of aeroscraps purchased by him from military authorities at Bamrauli Depot, Allahabad and delivered possession thereof to the appellant under an agreement of pledge entered into between them?
Whether the appellant was entitled to any relief when his case was that the first respondent never delivered to him the said goods and the said agreement never ripened into a pledge?
Held that:- Appeal dismissed. High Court was right in its findings that the said goods were delivered to the appellant, that he was a pledgee thereof and that the said agreement did not rest at the stage of a mere agreement to pledge. Where the value of the pledged property is less than the debt and in a suit for recovery of debt by the pledgee, the pledgee denies the pledge or is otherwise not in a position to return the pledged goods he has to give credit for the value of the goods and would be entitled then to recover only the balance. That being the position the appellant would not be entitled to a decree against the said promissory note and also retain the said goods found to have been delivered to him and therefore in his custody.
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1966 (12) TMI 64 - PATNA HIGH COURT
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... ... ..... date on which that liability accrued, and if the dealer was an unregistered dealer he could be assessed to sales tax from that date but if he became a registered dealer on the date of assessment, then his assessment for the period from the date of his application for registration till the date of the actual granting of certificate will be subject to the conditions laid down in sub-section (5) of section 13. Question No. (2) The answer to this question is found in answer to question No. (1). Question No. (3) Payment of tax by a dealer ordinarily will not be dependent on his having realised the tax. But if he is prevented from realising the tax on account of the delay on the part of the Sales Tax Department in granting him registration certificate, the authority concerned has discretion not to assess him to tax for the period of the delay. 12.. The reference is disposed of accordingly. There will be no order for costs. A.B.N. SINHA, J.-I agree. Reference answered accordingly.
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1966 (12) TMI 63 - ALLAHABAD HIGH COURT
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... ... ..... to say that he sold a colour. If an article is capable of being used as a chemical and also a colour, the answer to the question what he sold would depend upon how it was treated by the vendor. If he stocked and sold it as a chemical, it would be a chemical sold by him and more so if it was bought by the vendee also as such.............. In the instant case, it appears that some of the oxygen was sold for industrial purposes where the intention of Government would be to charge higher tax and some for medicinal purposes where obviously the intention is to assess at the lower rate on humanitarian grounds. For the reasons given above the question is answered by saying that oxygen is a chemical and it will be taxed at 0-1-0 anna per rupee when sold for industrial purposes and at three pies per rupee when sold for medicinal purposes. Reference is answered accordingly but in the circumstances of the case the parties are left to bear their own costs. Reference answered accordingly.
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1966 (12) TMI 62 - MADHYA PRADESH HIGH COURT
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... ... ..... , which must comprise more than one species (see State of Bombay v. Ali Gulshan(1) and Kochuni v. States of Madras and Kerala(2)). If the specified things preceding general words belong to different categories, the rule of ejusdem generis cannot be applied (see Indramani v. W.R. Natu(3) and Hamdard Dawakhana v. Union of India(4)). 7.. For the foregoing reasons, our answer to the first question is that P.V.C. rexine cloth is leather-cloth. The answer to the second question is in the negative. Our answer to the third and fifth questions is that the sale of P.V.C. rexine cloth is exempt from payment of sales tax under the notification dated the 12th December, 1960, and that if it had not been so exempted, then the sale would have been taxable under item 38 of Schedule II to the M.P. General Sales Tax Act, 1958. Our answer to the fourth question is in the negative. The assessee shall have costs of this reference. Counsel s fee is fixed at Rs. 150. Reference answered accordingly.
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1966 (12) TMI 61 - MADHYA PRADESH HIGH COURT
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... ... ..... the Act. The purpose why the proviso was enacted has been stated by the Nagpur High Court, and we agree with that view. 7.. For the aforesaid reasons, our answer to the first question is that the word contract occurring in the proviso to section 4(1) of the C.P. and Berar Sales Tax Act, 1947, is to be interpreted according to section 2(b) of the Act. 8.. Learned counsel for the assessee did not press the second question. From the facts on record it is obvious that the sales worth Rs. 13,05,449-3-0 were covered by Explanation II to section 2(g) of the Act and that the sales were liable to tax. The sales in question being of the pre-Constitution period could be taxed on the basis of the nexus theory that is why the learned counsel has fairly not pressed the second question. Our answer to the second question, therefore, is in the affirmative. 9.. The assessee shall pay costs of this reference to the Commissioner of Sales Tax. Hearing fee Rs. 150. Reference answered accordingly.
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1966 (12) TMI 60 - KERALA HIGH COURT
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... ... ..... arguments were academic and hypothetical. 13.. What we have said above can be summed up in the form of five propositions (1) The liability created by section 3 is a liability that has been validly created (2) The retrospective effect given to the liability created by section 3 under sub-section (3) of section 1 is equally valid (3) The liability created by section 3 should be enforced in all cases other than those covered by section 4 by proceedings under section 3 itself (4) The validation effected by section 4 is only to the extent of the liability created by section 3 and is controlled by the trammels on that liability and (5) Sections 3 and 4 have to be read together and when so done, there is neither a violation of Article 14 nor an inroad into the judicial power. It follows that the petitions should fail and have to be dismissed. 14.. The petitions are hereby dismissed. In the circumstances of the case, however, there will be no order as to costs. Petitions dismissed.
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