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1998 (8) TMI 649
Issues:
1. Failure to prove the plaint had been signed, verified, and instituted by a duly authorized person.
2. Change in name during the pendency of the appeal.
Issue 1: The appellant appealed against the dismissal of their suit for recovery due to the failure to prove the plaint had been signed, verified, and instituted by a duly authorized person. The appellant argued that the Power of Attorney had been duly executed and exhibited, invoking Section 85 of the Indian Evidence Act to raise a presumption of validity. However, the respondent contended that the appellant had not proven the authorization adequately. The court examined the evidence, noting that the Power of Attorney lacked authentication by a Notary Public, crucial for raising a presumption under Section 85. Citing precedents, the court emphasized the necessity of proving the resolution of the Board of Directors authorizing the Power of Attorney's execution. Ultimately, the court found the plaintiff had failed to produce or prove the necessary authorization, leading to the dismissal of the appeal.
Issue 2: During the appeal, the appellant's application for a change in name from M/s. India Linoleum Ltd. to M/s. Birla DLW Ltd. was allowed. This administrative change was noted in the judgment but did not impact the substantive legal issues under consideration. The court focused on the failure to prove authorization for the suit, ultimately leading to the dismissal of the appeal without costs, as the appellant did not take steps to rectify the deficiencies highlighted in the trial court's judgment.
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1998 (8) TMI 648
The Supreme Court judgment addressed a dispute regarding the age of retirement for teachers in engineering colleges in Bihar. The court ruled that the age of retirement for teachers in three state engineering colleges should not be equated with that of university teachers in Bihar Engineering College, Patna. The judgment set aside the High Court's decision to bring the retirement age of teachers in the state colleges on par with those in the university college and also nullified the direction to pay arrears or provide benefits based on the extended retirement age.
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1998 (8) TMI 647
Issues:
Interpretation of the Prevention of Corruption Act, 1988 regarding the liability of a retired public servant for offences committed while in service.
Analysis:
The judgment dealt with the case of an IPS Officer who faced charges under the Prevention of Corruption Act, 1988 even after retiring from service. The appellant argued that since the Act did not explicitly mention prosecution of retired public servants, he should not be liable. He relied on Section 197 of the Code of Criminal Procedure, which requires sanction for prosecution of public servants, including former public servants. However, the court noted that the definition of "public servant" in the Act did not exclude retired individuals, and the Act did not specify immunity for public servants post-retirement.
The court analyzed various sections of the Act and highlighted that while some provisions cover offences by non-public servants, others specifically address offences by public servants. It emphasized that the Act does not absolve a public servant of liability for offences committed while in office, even after retirement. The court also discussed Section 19(1) of the Act, which mandates previous sanction for prosecution of public servants, and clarified that a retired public servant can still be prosecuted under the Act.
The appellant argued that changes in Section 197 of the Code of Criminal Procedure necessitated a different interpretation of the Act for retired public servants. However, the court referred to previous judgments and the Law Commission's recommendations to emphasize the continued applicability of the Act to retired public servants. It noted that Parliament's decision not to amend Section 19 of the Act indicated a deliberate choice to maintain the distinction between public servants accused of offences related to official duties and those facing charges under the Prevention of Corruption Act.
Ultimately, the court concluded that a public servant, even after retirement, could be prosecuted for offences committed while in service under the Prevention of Corruption Act, 1988. It upheld the decisions of the Special Court and the High Court in rejecting the appellant's preliminary objections, thereby dismissing the appeal.
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1998 (8) TMI 646
Issues Involved:
1. Nature of the offence.
2. Validity of the trial concerning the framing of charges.
3. Evaluation of evidence and witness testimonies.
4. Application of Section 149 IPC regarding common object and unlawful assembly.
5. Determination of common object and individual liability.
Detailed Analysis:
1. Nature of the Offence:
The judgment primarily addresses the nature of the offence committed by the accused. The trial court convicted eleven persons under Sections 148 and 302/149 IPC, among other charges. The High Court set aside the convictions under Sections 148 and 302/149 IPC for A2 to A11, leading to the appeal by the State of Andhra Pradesh, which was heard together with the appeal filed by A1.
2. Validity of the Trial Concerning the Framing of Charges:
The defense argued that the charges were not framed in accordance with Section 211 of the CrPC, as the charge under Section 148 IPC did not specify the common object of the unlawful assembly, and a charge under Section 302 IPC was framed without the aid of Section 149 IPC. The court examined whether these errors caused a failure of justice. It concluded that the accused were not prejudiced in their defense because the material prosecution witnesses were cross-examined extensively, and the accused were informed of the charges under Sections 148 and 302/149 IPC during their examination under Section 313 of the CrPC.
3. Evaluation of Evidence and Witness Testimonies:
The court found the testimonies of PWs 1, 2, and 3, who were members of the deceased's household, to be consistent and corroborated by medical evidence and other facts such as the prompt lodging of the FIR, recovery of blood-stained earth, and weapons from the scene. The evidence of PWs 4 and 5, who were neighbors, also supported the prosecution's case. The court noted that the injuries sustained by the deceased and the witnesses matched the accounts of the assault.
4. Application of Section 149 IPC Regarding Common Object and Unlawful Assembly:
The court referred to precedents to elucidate the principles of Section 149 IPC, which holds every member of an unlawful assembly liable for offences committed in furtherance of the common object. It emphasized that proving an overt act by each member is not necessary; the mere presence in the assembly with the common object suffices for liability. The court found that the accused shared the common object of the unlawful assembly, which was to commit the murder of the deceased.
5. Determination of Common Object and Individual Liability:
The court examined the nature of the injuries inflicted on the deceased and the circumstances of the attack, concluding that the common object of the unlawful assembly was to commit murder. It rejected the defense's argument that only A1 was individually liable for the murder, noting that the manner of the attack indicated that all members of the assembly knew that murder was likely to be committed. Thus, A2 to A5 and A9 were also held liable under Sections 148 and 302/149 IPC.
Conclusion:
The appeal by A1 was dismissed, and the appeal by the State of Andhra Pradesh was allowed. The convictions and sentences of A2 to A5 and A9 under Sections 148 and 302/149 IPC were restored, and they were directed to surrender to their bail bonds to serve out the sentence imposed by the trial court.
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1998 (8) TMI 645
Issues Involved:
1. Whether the game of 'Rummy' played by the petitioners falls under the purview of Sections 3 and 4 of the A.P. Gaming Act, 1974.
2. Whether the premises of the Executive Club, Vijayawada, can be considered a 'common gaming house' under the A.P. Gaming Act, 1974.
3. Whether the collection of maintenance amounts by petitioners Nos. 50 to 52 makes the card room a 'gaming house'.
4. Whether the stakes involved in playing 'Rummy' affect the applicability of the A.P. Gaming Act, 1974.
Detailed Analysis:
1. Applicability of Sections 3 and 4 of the A.P. Gaming Act, 1974 to the Game of 'Rummy':
The petitioners were found playing 'Rummy' with thirteen cards. The counsel for the petitioners argued that 'Rummy' is a game of skill and is excluded from the purview of the Act under Section 15. The court referred to the Supreme Court judgment in State of Andhra Pradesh v. K. Satyanarayana, which held that 'Rummy' is not a game of pure chance but requires skill. The court concluded that 'Rummy' is a game of skill and thus, Sections 3 and 4 of the Act do not apply.
2. Definition of 'Common Gaming House':
The court examined the definition of a 'common gaming house' under Section 2 of the A.P. Gaming Act, 1974. The Supreme Court in the State of A.P. case observed that charging an extra fee for playing cards does not necessarily make a club a common gaming house. The court held that the Executive Club, Vijayawada, cannot be considered a 'common gaming house' merely because it permits the playing of 'Rummy' and charges a fee for maintenance.
3. Collection of Maintenance Amounts:
The police alleged that petitioners Nos. 50 to 52 collected amounts for the maintenance of the card room. The court held that the collection of maintenance amounts does not make the card room a 'gaming house' as long as the game played is 'Rummy', which is a game of skill.
4. Stakes Involved in Playing 'Rummy':
The court referred to the Supreme Court judgment in K.R. Lakshmanan v. State of Tamil Nadu, which held that competitions involving a substantial degree of skill are not gambling. The court concluded that the stakes involved in playing 'Rummy' do not affect its classification as a game of skill. Therefore, the provisions of the A.P. Gaming Act, 1974, do not apply, irrespective of the stakes.
Conclusion:
The court held that the proceedings against the petitioners under Cr.No.406/97 cannot continue as the game of 'Rummy' played by them is a game of skill and not covered by the A.P. Gaming Act, 1974. The court quashed the proceedings and directed the respondent to return the seized amounts to the first petitioner.
Order:
The petition is allowed, and the proceedings in Cr.No.406/97 on the file of P.S., Machavaram, Vijayawada City, are quashed. The respondent is directed to return the seized amounts to the first petitioner.
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1998 (8) TMI 644
Issues Involved:
1. Pay-scale entitlement of Private Secretaries to the Judges of the Gujarat High Court.
2. Application of Article 229 of the Constitution.
3. Principle of equal pay for equal work.
4. Parity between pay-scales of High Court staff and Secretariat staff.
5. Validity of the High Court's direction to upgrade pay-scales.
6. Applicability of judgments from other High Courts and the Supreme Court.
7. Specific claim of C.G. Govindan for a higher pay-scale from a retrospective date.
Issue-wise Detailed Analysis:
1. Pay-scale Entitlement of Private Secretaries to the Judges of the Gujarat High Court:
The primary issue was whether all Private Secretaries to the Judges of the Gujarat High Court should be granted the pay-scale of Rs. 3000-4500. The High Court had accepted the contention of the Private Secretaries and granted the relief, which was challenged by the State of Gujarat.
2. Application of Article 229 of the Constitution:
Article 229 of the Constitution governs the conditions of service of officers and servants of the High Court, requiring the Chief Justice's rules to be approved by the Governor. The judgment emphasized that the Chief Justice's power to fix salaries is not absolute and requires the Governor's approval. The High Court's direction to grant the higher pay-scale without the Governor's approval was deemed inappropriate.
3. Principle of Equal Pay for Equal Work:
The principle of equal pay for equal work was invoked but was found inapplicable. The work of Private Secretaries to High Court Judges was deemed different from that of Private Secretaries to Secretaries in the State Secretariat. The judgment highlighted that parity had been maintained over the years, and any increase in pay-scales in the Secretariat would create a legitimate expectation of a similar increase for the High Court staff.
4. Parity Between Pay-scales of High Court Staff and Secretariat Staff:
The judgment noted that a general parity between the pay-scales of High Court and Secretariat staff had been maintained. The promotional pay-scale of Rs. 3000-4500 was intended for senior Stenographers Grade I-cum-Private Secretaries with over 15 years of service to prevent stagnation. The High Court's direction to grant this pay-scale to all Private Secretaries irrespective of service length would disrupt this parity.
5. Validity of the High Court's Direction to Upgrade Pay-scales:
The High Court's direction to grant the higher pay-scale to all Private Secretaries was found unjustified. The judgment emphasized that such a direction should not circumvent the constitutional methodology outlined in Article 229, which requires the Governor's approval for salary-related decisions.
6. Applicability of Judgments from Other High Courts and the Supreme Court:
The judgment referenced decisions from the Delhi High Court and Kerala High Court. It was noted that the Delhi High Court's decision to grant a higher pay-scale to its Private Secretaries was based on specific circumstances and did not automatically apply to other High Courts. The Kerala High Court's decision, which denied similar claims, was distinguished based on different facts and legal principles.
7. Specific Claim of C.G. Govindan for a Higher Pay-scale from a Retrospective Date:
C.G. Govindan's appeal for a higher pay-scale from 1st January 1986 was dismissed. The judgment upheld the High Court's decision that Govindan, who joined the cadre of Private Secretaries in the High Court in 1990, could not claim the higher pay-scale for the period prior to his joining.
Conclusion:
The appeals filed by the State of Gujarat were allowed, setting aside the High Court's direction to grant the higher pay-scale to all Private Secretaries. The corrigendum dated 27.11.1991, which provided for upgrading 10% of the posts, was upheld. The appeal of C.G. Govindan was dismissed, affirming that he would be eligible for the higher pay-scale only after fulfilling the requisite criteria. The dissenting opinion by D.P. Wadhwa, J., however, supported the High Court's decision to grant the higher pay-scale to all Private Secretaries, emphasizing the discriminatory nature of the State Government's stand.
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1998 (8) TMI 643
Issues:
1. Tenant's appeal under Delhi Rent Control Act - eviction for landlord's bona fide need.
2. Disclosure of full facts by the landlord.
3. High Court's decision on the availability of alternate accommodation.
4. Interpretation of Section 14(1)(e) of the Act regarding landlord's bona fide requirement.
Analysis:
Issue 1:
The tenant appealed against eviction under the Delhi Rent Control Act, claiming the landlord had alternate accommodation at Subzi Mandi and shifted to the disputed premises with a mala fide intention. The Rent Controller found the landlord's need for possession valid due to lack of adequate accommodation for his family members, excluding one individual. The High Court affirmed this finding on the landlord's bona fide requirement, despite the non-disclosure of the Subzi Mandi property initially.
Issue 2:
The Rent Controller and High Court scrutinized the landlord's non-disclosure of the availability of accommodation at 2772, Subzi Mandi. The High Court examined the landlord's history at Subzi Mandi, noting the possession handover in 1984 after a notice to vacate in 1981. Despite the non-disclosure, the High Court concluded the Subzi Mandi property was not reasonably suitable residential accommodation for the landlord due to impending eviction pressure.
Issue 3:
The tenant argued that the landlord's non-disclosure of the Subzi Mandi property was a significant finding, invoking Section 25B(8) proviso's limitation on High Court's revisionary powers. The tenant relied on precedents to support the contention that unless findings are manifestly unjust, the High Court should not interfere with factual conclusions. However, the High Court justified its intervention based on the overall circumstances and legal analysis of the case.
Issue 4:
Interpreting Section 14(1)(e) of the Act, the Court emphasized the landlord's obligation to establish a bona fide need for the premises and prove the absence of other suitable residential accommodation. The Court clarified that the landlord's requirement and the availability of alternate accommodation are intertwined, affecting the legitimacy of the eviction claim. The Court rejected a strict approach to analyzing pleadings, emphasizing the need for substantial compliance and mutual understanding between the parties.
In conclusion, the Supreme Court dismissed the tenant's appeal, with each party bearing their costs. The Court granted the tenant time to vacate the premises, subject to providing an undertaking within a specified period. The judgment highlighted the nuanced interpretation of the Delhi Rent Control Act's provisions and the importance of full disclosure and legal analysis in eviction cases.
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1998 (8) TMI 642
Issues:
1. Dismissal of objections to arbitration award for non-prosecution.
2. Application for restoration and condonation of delay.
3. Contention regarding dismissal of objections on merits.
4. Delay in filing application for restoration.
Analysis:
1. The appellant's objections to the arbitration award were dismissed by the learned Single Judge for non-prosecution as nobody appeared to prosecute them. The Single Judge noted that the objections were on the merits of the award, which could not be considered under the Indian Arbitration Act, leading to their dismissal as meritless.
2. Subsequently, the appellant filed an application for restoration along with a plea for condonation of delay in filing the restoration application. The delay was attributed to the Department's lack of prompt action in pursuing the matter. The appellant cited circumstances such as the previous counsel resigning, the subsequent appointment of a new counsel, and delays in obtaining necessary documents as reasons for the delay.
3. The respondent contended that the objections were also dismissed on merits, implying that the application for restoration was not maintainable. However, the Court disagreed, stating that the dismissal of the condonation of delay application was based on the Department's non-serious attitude rather than the objections being dismissed on merits.
4. Considering the circumstances presented by the appellant and the general leniency courts show in such matters, the Court decided to condone the delay in filing the application for restoration. The Court found that the delay was unintentional and did not indicate negligence or total inaction on the appellant's part. Whether the limitation period started from the date of learning about the dismissal or the actual order date was not a crucial factor in this decision.
5. Consequently, the Court set aside the impugned order, allowing the condonation of delay application and directing the restoration application to be decided on its merits. The parties were instructed to appear before the Single Judge for further proceedings, thereby allowing the appeal in favor of the appellant.
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1998 (8) TMI 641
Issues:
Classification of impregnated cotton fabrics for excise duty under Chapter 59 or Chapters 50 to 55.
Detailed Analysis:
Issue 1: Classification of impregnated cotton fabrics under Chapter 59 or Chapters 50 to 55 for excise duty:
- The petitioner challenged the order classifying their impregnated cotton fabrics under sub-heading 5901.10 as Buckram cloth/stiffened fabric.
- Petitioner argued that since their product is impregnated with plastic material not visible to the naked eye, it should be classified under Chapters 52 to 55 of the Excise Tariff, not under Chapter 59.
- The Excise Authorities contended that the petitioner's product is similar to buckram and stiffened textile fabrics, falling under sub-heading 5901.10.
- The Chemical Examiner's report confirmed the presence of white stiff woven cotton fabrics impregnated with plastic material in the petitioner's product.
- The court analyzed the relevant Tariff items and noted that Chapter 59.03 excludes fabrics where impregnation, coating, or covering cannot be seen with naked eyes from Chapter 59, directing them to Chapters 50 to 55, 58 or 60.
- Referring to a Ministry's clarification, the court emphasized that interlining cloth not meeting the criteria of Chapter 59.03 or specifications for buckram fabrics (59.01) should be classified under Chapters 50 to 55 based on material predominance.
- The court found Heading 52.06 to be the closest classification for the petitioner's product, directing the Excise Authorities to reconsider the classification based on relevant items in Chapters 50 to 55.
- Consequently, the court ruled that no excise duty should be levied under Chapter 59.03 or 59.01, instructing the authorities to assess the petitioner's product under the relevant items of Chapters 50 to 55, overturning the Collector's order and remanding the matter for reassessment.
This comprehensive analysis addresses the classification issue of the impregnated cotton fabrics for excise duty, highlighting the interpretation of relevant Tariff items, the arguments presented by both parties, the Chemical Examiner's report, and the applicable Ministry's clarification. The court's detailed reasoning and directive for reassessment under Chapters 50 to 55 provide a thorough understanding of the judgment.
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1998 (8) TMI 640
Issues:
Contempt of court - Procedure followed by the court - Transfer of proceedings to principal seat of High Court
Analysis:
The judgment involves a batch of criminal appeals arising from an order by the Division Bench of the Allahabad High Court, Lucknow Bench, finding the appellants guilty under the Contempt of Courts Act. The appellants were sentenced to imprisonment for one month and a fine. The incident leading to the contempt proceedings involved the appellants entering the court room, raising slogans, and attempting to manhandle the judges, which forced the court to retire temporarily. The High Court found the appellants guilty of contempt, leading to the imposition of the aforementioned sentence.
The appellants challenged the High Court's order, primarily on the ground that the court did not follow the prescribed procedure. The appellants argued that they were not given a reasonable opportunity to be heard before the order was passed. The appellants cited Section 14 of the Contempt of Courts Act, 1971, and Chapter XXXV-E of the Allahabad High Court Rules, emphasizing the importance of natural justice and the need for a fair hearing before a contempt order is issued.
Upon hearing the arguments, the Supreme Court found that the High Court had indeed not followed the proper procedure while passing the impugned order. The Supreme Court emphasized that while the High Court has the jurisdiction to address contempt under Article 215 of the Constitution, such jurisdiction must be exercised in accordance with the prescribed legal procedure. Therefore, the Supreme Court set aside the High Court's order and decided to transfer the contempt proceedings to the principal seat of the Allahabad High Court in Allahabad to ensure a fair and just resolution.
In conclusion, the Supreme Court partially allowed the criminal appeals, remitting the proceedings to the principal seat of the Allahabad High Court. The Court requested the Chief Justice of the Allahabad High Court to nominate a bench to hear and dispose of the contempt proceedings, following the prescribed rules. The High Court was urged to expedite the case and dispose of it within six months from the date of receipt of the Supreme Court's order.
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1998 (8) TMI 639
The Supreme Court of India allowed the appeal by the Union of India against the Central Administrative Tribunal's order, reinstating an employee with reduced pay after a punishment of compulsory retirement. The Court held that the Tribunal exceeded its jurisdiction in interfering with the punishment imposed. The Court decided to show leniency to the respondent by allowing superannuation benefits without changing the Tribunal's direction, stating that no additional benefits would be granted.
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1998 (8) TMI 638
The Supreme Court dismissed the appeal against the Customs Excise and Gold (Control) Appellate Tribunal's judgment dated January 3, 1992. No costs were awarded. (Case citation: 1998 (8) TMI 638 - SC)
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1998 (8) TMI 637
Issues Involved:
1. Whether the permission of the Transport Commissioner under Rule 258(2)(ii) of the Andhra Pradesh Motor Vehicles Rules, 1989, is required before filing an application for a permit on a route covered by a scheme notified under the Motor Vehicles Act, 1988.
2. Whether the Transport Commissioner's power to extend a town service route more than 8 kilometers beyond the municipal or town limits is unlimited.
Issue-wise Detailed Analysis:
1. Permission of the Transport Commissioner:
The primary issue was whether the permission of the Transport Commissioner, as contemplated in Rule 258(2)(ii) of the Andhra Pradesh Motor Vehicles Rules, 1989, must be obtained before filing an application for a permit on a route covered by a scheme notified under the Motor Vehicles Act, 1988. The court held that the permission must be obtained beforehand. Rule 258(2) mandates that the Regional Transport Authority (RTA) determine town service routes subject to certain restrictions, including that no route should extend more than 8 kilometers beyond municipal limits unless specific permission from the Transport Commissioner is obtained. The court emphasized that if a scheme is in force for a particular route, the authority must adhere to the scheme's terms. Any applicant seeking a permit under the town service exception must first obtain the Transport Commissioner's permission if the route extends beyond 8 kilometers from the municipal limits. The court concluded that the RTA could only consider the permit application after such permission is granted, and thus, permission from the Transport Commissioner is a prerequisite.
2. Scope of the Transport Commissioner's Power:
The second issue was whether the Transport Commissioner's power to extend a town service route beyond 8 kilometers is unlimited. The court clarified that while Rule 258(2) does not explicitly limit the Transport Commissioner's power, it cannot be considered unlimited. The court noted that the power must be exercised judiciously and not arbitrarily, ensuring that the extension does not convert a town service route into a muffasal (rural) service route. The court referenced the principle that discretionary powers are often coupled with duties, and such powers must be exercised in good faith, considering all relevant factors and avoiding arbitrary decisions. The court cited previous rulings and legal principles to support this view, emphasizing that the Transport Commissioner's discretion must align with the legislative intent and the specific guidelines provided in the rules. The court also pointed out that the Transport Commissioner's permissions in the cases at hand had extended the routes significantly beyond the prescribed limits, indicating a failure to apply the relevant considerations.
Conclusion:
The court concluded that the appeals were to be allowed, setting aside the orders of the High Court and the State Transport Appellate Tribunal, and restoring the orders of the Regional Transport Authority, which had rejected the applications for permits. The court reiterated that the Transport Commissioner's power to extend town service routes must be exercised appropriately and within the guidelines provided, ensuring that town service routes do not transform into muffasal routes. There would be no order as to costs.
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1998 (8) TMI 636
Issues:
Tenant's writ petition challenging the lower appellate court's decision regarding the release application made by the landlord under Section 21(1)(a) of U.P. Act No. XIII of 1972.
Analysis:
1. The landlord filed an application for release under Section 21(1)(a) of the Act, stating the need for the disputed accommodation for residential purposes due to changed circumstances. The Prescribed Authority rejected the application initially, but the landlord appealed to the District Judge, who allowed the appeal. The tenant challenged this decision in a writ petition.
2. The tenant contended that the lower appellate court erred in not considering the affidavits filed in support of the defense, as they were sworn before a Notary and not an Oath Commissioner. The tenant argued that this led to a miscarriage of justice, citing a previous case where affidavits sworn before a Notary were deemed admissible. The tenant emphasized that non-consideration of material evidence vitiates a finding of fact and requested the court to interfere.
3. The tenant further argued that if the appellate authority found the affidavits defective, it should have either rejected them before the judgment or allowed the petitioner to rectify the defects. Emphasizing that procedural rules should not hinder justice, the tenant highlighted the principle that strict enforcement of the law can sometimes lead to the severest injustice.
4. The court, after considering the arguments, concluded that the lower appellate court's judgment could not be sustained. The court allowed the writ petition, quashed the appellate authority's judgment, and remanded the case back for a fresh decision, instructing the appellate authority to decide the appeal expeditiously. The court directed the parties to bear their own costs in the matter.
This detailed analysis of the judgment highlights the key arguments presented by the tenant, the legal principles invoked, and the court's decision to set aside the lower appellate court's judgment for reconsideration in accordance with the law.
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1998 (8) TMI 635
Issues: Classification of cut and dried chicory roots under the Gujarat Sales Tax Act, 1969
Analysis:
1. The appeal concerns the classification of cut and dried chicory roots under the Gujarat Sales Tax Act, 1969. The appellant assessees argue that the roots fall under Entry 8 or Entry 23 of the First Schedule, while the Revenue contends they fall under the residuary entry, Entry 13 of the Third Schedule.
2. The Tribunal and High Court differed in their interpretations. The Tribunal concluded that dry chicory roots did not fit under Entries 8 or 23, while the High Court applied the popular parlance test and also excluded them from these entries.
3. The appellants' counsel argued that the character of chicory roots remained unchanged even after being cut and dried, citing a relevant judgment. In contrast, the Revenue's counsel claimed that drying and cutting altered the roots' character, making them no longer tubers.
4. Referring to a previous case involving pineapples, the Court emphasized that the essential identity of a commodity must remain unchanged after processing. In this context, the Court analyzed the agreement between the appellants and cultivators, concluding that the chicory roots' essential character remained intact despite cutting and drying.
5. The Court found that dried chicory roots, being tubers, fell within the ambit of Entry 23 of the Act, which includes tubers and plants other than orchids. Consequently, the roots were deemed taxable under this entry.
6. The second question raised in the appeal was not pursued due to the resolution regarding the classification of chicory roots. As a result, the appeal was allowed, the judgment under appeal was set aside, and no costs were awarded.
This comprehensive analysis of the judgment addresses the issues involved in the classification of cut and dried chicory roots under the Gujarat Sales Tax Act, 1969, providing a detailed examination of the arguments presented and the Court's final decision.
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1998 (8) TMI 634
The Supreme Court of India considered the validity of a judgment granting divorce under Section 13B of the Hindu Marriage Act, 1955. The petitioner challenged the judgment, claiming it exceeded the court's jurisdiction. A review petition was dismissed, leading to a debate on the maintainability of a writ petition under Article 32. The matter was referred to a Constitution Bench for consideration. The respondent deposited Rs. 10,50,000 as directed by the court and was allowed to withdraw the amount upon furnishing a bank guarantee.
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1998 (8) TMI 633
Issues Involved:
1. Eviction of tenants.
2. Recovery of arrears of rent.
3. Recovery of construction costs and interest.
4. Validity of amendments to pleadings.
5. Jurisdiction of Civil Court in eviction matters.
6. Calculation of mesne profits and damages.
7. Rate of interest on amounts due.
Detailed Analysis:
1. Eviction of Tenants:
The landlord filed OS No. 1003 of 1983 for eviction of tenants from the premises. The tenants defaulted on rent payments from September 1980 onwards. The landlord issued a notice under Section 106 of the Transfer of Property Act, terminating the tenancy by the end of May 1983. The lower court decreed OS 1003 of 1983, directing the tenants to deliver vacant possession of the first-floor mulgis and awarded future mesne profits from July 1983 until possession was delivered.
2. Recovery of Arrears of Rent:
The landlord filed OS No. 922 of 1991 for recovery of arrears of rent from December 1980 to April 1983. The lower court decreed the suit, awarding arrears of rent for 20 months at Rs. 1,500 per month. The tenant's appeal (CCCA 177 of 1995) questioning this decree was dismissed as there was no proof of rent payment during this period.
3. Recovery of Construction Costs and Interest:
The tenant filed OS No. 1 of 1984 for recovery of construction costs incurred for the first-floor mulgis, with interest. The lower court decreed the suit for Rs. 95,898 with interest at 12% per annum from 2-9-1984 till the date of the suit. The appellate court modified the interest rate to 15% per annum from 2-9-1981 till the date of the suit and 12% thereafter until realization.
4. Validity of Amendments to Pleadings:
The landlord initially admitted in OS No. 922 of 1991 that the construction costs would be adjusted against rent but later sought to amend the pleadings to state that the tenants constructed the first floor without any liability on the landlord. The appellate court held that the amendment was untrue and should not have been permitted, as it contradicted the landlord's earlier admissions and documentary evidence.
5. Jurisdiction of Civil Court in Eviction Matters:
The tenant argued that since the rent for each mulgi would be less than Rs. 1,000 after apportionment, the Civil Court had no jurisdiction, and the matter should be before the Rent Controller. The appellate court rejected this contention, noting that no such plea was raised in the pleadings and that the plaintiff was recognized as the landlord for the entire property.
6. Calculation of Mesne Profits and Damages:
The landlord claimed damages for use and occupation from July 1983 onwards at varying rates. The appellate court awarded damages at Rs. 1,500 per month from July 1983 to July 1984, Rs. 250 per sq. ft. from August 1984 to July 1989, Rs. 325 per sq. ft. from August 1989 to July 1994, and Rs. 400 per sq. ft. from August 1994 until the date of vacating the premises.
7. Rate of Interest on Amounts Due:
The tenant argued that the lower court's interest rate of 12% per annum on the construction costs was inadequate, given the contractual rate of 36% per annum. The appellate court, referencing a Supreme Court decision, deemed 15% per annum from 2-9-1981 till the date of the suit and 12% thereafter as reasonable.
Conclusion:
- CCCA 196 of 1994: Partly allowed; tenant entitled to refund of Rs. 4,500 deposit.
- CCCA 64 of 1995: Dismissed; eviction decree and cross-objections dismissed, mesne profits adjusted.
- CCCA 177 of 1995: Dismissed; arrears of rent decree confirmed.
- Time to vacate premises: Three months.
- No costs awarded.
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1998 (8) TMI 632
Issues:
Framing of charge under Section 138 of the Negotiable Instruments Act, 1881 against directors of a company based on vicarious liability.
Analysis:
The petitioners challenged the order directing the framing of charges against them under Section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that cheques issued by the company were dishonored due to insufficient funds, leading to a legal notice and subsequent filing of a complaint against the company and its directors. The petitioners contended that they were not in charge of the company's business and therefore should not be vicariously liable for the offense.
The court examined Section 141 of the Act, which outlines the vicarious liability of individuals in a company. It distinguishes between those in charge of the company's business and other officers. Subsection (1) holds those responsible for the conduct of the business directly liable, while Subsection (2) covers directors, managers, etc., only if the offense was committed with their consent or connivance. The court emphasized the need for specific averments in the complaint to establish vicarious liability.
The court clarified that the burden of proving a person's responsibility for the company's conduct lies with the complainant. Even if the complainant meets this burden, the accused can still show lack of knowledge or due diligence to avoid liability. In this case, the court found no evidence or allegations suggesting the petitioners' involvement in the offense. Therefore, the charge against them could not be sustained under Section 141 of the Act.
The court disagreed with a previous judgment that allowed prosecution based solely on being named in the complaint without specific averments regarding responsibility. Consequently, the court set aside the order framing charges against the petitioners and discharged them. The judgment highlighted the importance of factual allegations and evidence to establish vicarious liability under the Act.
In conclusion, the court ruled in favor of the petitioners, setting aside the order to frame charges against them under Section 138 of the Act. The petition was disposed of, and the trial court was instructed to proceed accordingly.
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1998 (8) TMI 631
Issues:
Whether notice under section 138 of the Negotiable Instruments Act, 1881 is required to be given to every person in charge of a company committing an offence under section 138.
Analysis:
The judgment deals with the question of whether individual notice is required to be given to every person in charge of a company committing an offence under section 138 of the Negotiable Instruments Act, 1881. The court considered the case where a partnership firm issued dishonored cheques and the partners were subsequently arraigned as accused persons. The main contention raised was that without individual notice to each partner, the complaint against them was not maintainable. The petitioner argued that the underlying purpose of the Act is to provide an opportunity for the accused to make payment and absolve themselves from criminal liability, necessitating notice to each accused individual. However, the respondent contended that section 138 of the Act only requires notice to be given to the drawer of the cheque, not to every person in charge of the company.
The court examined the relevant provisions of the Act, particularly section 141, which deems every person in charge of a company, at the time of the offence, to be guilty and liable to be proceeded against. The court interpreted that the legislative intention was not to mandate individual notice to every person in charge of the company. It emphasized that individuals in such positions are presumed to have knowledge of the company's transactions and are responsible for its conduct. Therefore, the court concluded that only the drawer of the cheque needs to be given notice under section 138, and no other individuals are required to be notified.
The judgment cited precedents from the Andhra Pradesh High Court and the Madras High Court, which supported the view that individual notice to partners or persons in charge of a company is not necessary in cases of dishonored cheques. The court agreed with these decisions, stating that partners in a firm, deemed as a company under the Act, are automatically implicated in such cases without the need for separate notices. Consequently, the court dismissed the applications, upholding the trial court's decision to arraign the partners as accused persons based on the legal provisions of sections 138 and 141 of the Act.
In conclusion, the court found that the arraignment of the partners as accused persons without individual notice was in accordance with the law. The judgment emphasized that the statutory requirement for notice under section 138 of the Act is limited to the drawer of the cheque, and partners or individuals in charge of the company are deemed to be aware and responsible for the company's transactions. Therefore, the court dismissed the applications and discharged the rule nisi issued in each case, with parties bearing their own costs.
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1998 (8) TMI 630
Issues Involved:
1. Determination of the nature of the deed dated 12.04.1950 (Exhibit A6) and whether it created a charge or was merely an undertaking not to alienate the suit property.
2. The status of the appellant as a puisne mortgagee.
3. The applicability of Order XLI Rule 33 of the CPC in the context of the appellate court's powers.
4. The finality and res judicata effect of the trial court's decree for redemption.
Issue-wise Detailed Analysis:
1. Nature of the Deed (Exhibit A6):
The primary issue was whether the deed dated 12.04.1950 executed by Ganesan created a charge on the property or was merely an undertaking not to alienate it. The trial court concluded that Exhibit A6 created a charge, noting that the document was named as a security deed, had non-judicial stamps for Rs. 105, and specifically mentioned the suit property for Rs. 7,000 and subsequent interest and costs. The court found that the document evidenced an intention to create a charge for the payment of Rs. 7,000, costs, and interest. However, the High Court disagreed, stating that the security bond did not amount to a mortgage or create a charge on the land. It was merely an undertaking not to alienate the land until the decree in suit No. 108 of 1950 was discharged, which became void once the decree was passed.
2. Status of the Appellant as a Puisne Mortgagee:
The appellant claimed the status of a second mortgagee based on the security bond (Exhibit A6) and the auction sale held on 14.12.1966. The High Court held that the appellant could not claim the status of a puisne mortgagee because the security bond did not create a charge. The decree in suit No. 108 of 1950 was a simple money decree, not a mortgage decree. Therefore, the appellant, who purchased the property in execution of that decree, did not acquire any rights as a mortgagee under Exhibit A6.
3. Applicability of Order XLI Rule 33 of the CPC:
The High Court exercised its powers under Order XLI Rule 33 of the CPC to set aside the decree passed in favor of the appellant, despite the respondent not having filed an appeal against that part of the decree. The Supreme Court upheld this exercise of power, noting that Order XLI Rule 33 allows the appellate court to pass any decree or order that ought to have been made, even if the appeal is only against part of the decree and the parties have not filed an appeal. The Court emphasized that the rule enables the appellate court to pass such orders in exceptional cases to avoid anomalous or absurd results.
4. Finality and Res Judicata Effect of the Trial Court's Decree for Redemption:
The appellant contended that the trial court's decree for redemption had attained finality and operated as res judicata because the respondent did not appeal against it. The Supreme Court rejected this argument, stating that when the entire matter was still in appeal, any part of the finding could be varied by the appellate court. The principle of res judicata did not apply as the matter had not attained finality. The High Court's finding that Exhibit A6 did not create a charge necessitated the dismissal of the appellant's suit for redemption, as maintaining the decree for redemption would have been inconsistent with the finding of non-existence of a charge.
Conclusion:
The Supreme Court dismissed the appeals, affirming the High Court's judgment that the security bond (Exhibit A6) did not create a charge and that the appellant did not acquire any rights as a puisne mortgagee. The Court upheld the High Court's exercise of powers under Order XLI Rule 33 of the CPC to set aside the decree for redemption in favor of the appellant, despite the respondent not having appealed against it. The trial court's decree for redemption did not attain finality and did not operate as res judicata in the context of the appellate proceedings.
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