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• 2002 (8) TMI 894
  
  The judgment addresses the admissibility and reliability of dying declarations in criminal proceedings, focusing on the conflict between two prior Supreme Court decisions. The core legal issue revolves around whether a dying declaration can be accepted as evidence without a medical certification explicitly stating that the declarant was in a fit state of mind at the time of making the statement.

  Issues Presented and Considered

  The primary issue considered is the validity and reliability of dying declarations as evidence, particularly in the absence of explicit medical certification regarding the declarant's mental fitness. The Court examines the conflict between two previous decisions: Paparambaka Rosamma and Ors. v. State of Andhra Pradesh and Koli Chunilal Savji and Anr. v. State of Gujarat, which offer differing views on the necessity of medical certification for dying declarations.

  Issue-wise Detailed Analysis

  Relevant Legal Framework and Precedents

  The legal framework for dying declarations is based on the principle that such statements are made under the solemnity of impending death, which is presumed to eliminate motives for falsehood. The Court refers to the decisions in Paparambaka Rosamma and Koli Chunilal Savji, which present conflicting views on the necessity of medical certification for the declarant's mental state.

  Court's Interpretation and Reasoning

  The Court emphasizes that the primary consideration is whether the dying declaration is voluntary and truthful. It acknowledges that while medical certification is a rule of caution, it is not an absolute requirement. The Court reasons that the testimony of a magistrate or other responsible officer, who is satisfied with the declarant's mental fitness, can suffice in the absence of medical certification.

  Key Evidence and Findings

  The Court reviews the evidence from the magistrate who recorded the dying declaration and the accompanying medical certificate indicating the declarant's consciousness. The magistrate's testimony that he assessed the declarant's mental fitness through questioning is deemed sufficient to establish the reliability of the declaration.

  Application of Law to Facts

  The Court applies the principle that the absence of explicit medical certification does not automatically render a dying declaration inadmissible. It concludes that the magistrate's satisfaction regarding the declarant's mental state, supported by the declarant's answers, is adequate to establish the declaration's validity.

  Treatment of Competing Arguments

  The Court addresses the argument from Paparambaka Rosamma that a lack of medical certification makes a dying declaration risky to accept. It counters this by affirming the position in Koli Chunilal Savji that the magistrate's assessment can be sufficient, thereby rejecting the hyper-technical requirement for explicit medical certification.

  Conclusions

  The Court concludes that the decision in Paparambaka Rosamma was incorrectly decided and affirms the legal principles established in Koli Chunilal Savji. The necessity of medical certification is not absolute, and the magistrate's satisfaction with the declarant's mental state can suffice for the declaration's admissibility.

  Significant Holdings

  The Court establishes that the requirement for medical certification of a declarant's mental fitness is not an absolute rule. It holds that the testimony of a magistrate or responsible officer, who is convinced of the declarant's mental state, can suffice to admit a dying declaration as evidence. The judgment emphasizes that the ultimate test is the truthfulness and voluntariness of the declaration, not the presence of medical certification.

  The Court states, "It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind... Therefore, the judgment of this court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh must be held to be not correctly decided."

  The judgment resolves the conflict between the two prior decisions and provides clarity on the admissibility of dying declarations, emphasizing the importance of the declarant's mental state assessment by the recording authority.

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• 2002 (8) TMI 893
  
  The Gujarat High Court quashed an order by the Deputy Commissioner of Central Excise for not providing a hearing to the petitioner, citing a breach of natural justice. The petition was allowed, and the impugned order was set aside, allowing the respondent to pass appropriate orders after giving the petitioner a hearing. No opinion was expressed on the claim for refund.

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• 2002 (8) TMI 892
  
  Issues Involved:
  1. Admissibility of an unregistered agreement to sale under the Registration (Gujarat Amendment) Act, 1982.
  2. Plaintiff's entitlement to possession of the suit house based on the unregistered agreement.
  3. The legal implications of the defendant's claim of ownership and possession.
  
  Issue-Wise Detailed Analysis:
  
  1. Admissibility of an Unregistered Agreement to Sale:
  The central legal question in this case was whether the agreement to sale dated 29-12-1962, which was not registered, could be admitted as evidence. The Registration (Gujarat Amendment) Act, 1982 amended the Registration Act, 1908, making it mandatory for such documents to be registered. The amendment was given retrospective effect, allowing documents executed before the commencement of the Act to be registered within four months from 1st March, 1982. The proviso to Section 49 of the Registration Act, 1908, however, allows unregistered documents to be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract under Section 53A of the Transfer of Property Act, 1882.
  
  2. Plaintiff's Entitlement to Possession:
  The plaintiff filed Regular Civil Suit No. 222 of 1973 seeking possession of the suit house based on the unregistered agreement to sale. The trial court and the first appellate court both ruled in favor of the plaintiff, directing the defendant to hand over possession upon receipt of Rs. 900.00. However, the High Court noted that the plaintiff's suit was solely based on the unregistered document. The plaintiff did not plead or pray for possession based on ownership, which was a critical omission. The High Court emphasized that the plaintiff must succeed on his own strength and not on the weakness of the defendant.
  
  3. Defendant's Claim of Ownership and Possession:
  The defendant contested the suit, claiming ownership and continuous possession of the suit house. The trial court and the first appellate court found the defendant's evidence inconsistent and not trustworthy. The High Court, however, pointed out that the plaintiff's failure to base the suit on ownership meant that the unregistered document could not be admitted as evidence. The High Court reiterated that the plaintiff could not rely on the defendant's failure to prove ownership to succeed in his claim.
  
  Conclusion:
  The High Court concluded that the unregistered agreement to sale could not be considered admissible evidence under the amended Registration Act. Consequently, the plaintiff's suit, which was solely based on this document, could not succeed. The court clarified that this decision did not render the plaintiff remediless, as other legal remedies could be pursued for recovering possession. The Second Appeal was allowed, and the judgments and decrees of the lower courts were quashed, resulting in the dismissal of the plaintiff's suit.

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• 2002 (8) TMI 891
  
  Issues involved:
  Claim for subsistence allowance during suspension period.
  
  Detailed Analysis:
  
  1. Background and Facts:
  The appeal arises from a judgment dismissing a Letters Patent Appeal filed by the Appellant. The Appellant's husband, an Assistant in the State Co-operative Society Department, was suspended on 4th August, 1967, and passed away on 25th July, 1990, after being under suspension for the entire period. The Appellant sought payment of amounts due during her husband's employment, leading to a series of legal actions.
  
  2. Legal Provisions and Previous Orders:
  The Registrar rejected the claim for subsistence allowance, prompting the Appellant to file a Writ Petition and subsequent appeals. The High Court dismissed the Writ Petition, citing the absence of the Appellant's husband for 23 years, with only one day of presence. The relevant Rule 96 of the Bihar Service Code mandates subsistence allowance for suspended government servants.
  
  3. Arguments and Authorities:
  The Respondent cited Rule 96(2) requiring a certificate of non-engagement in other activities for subsistence allowance eligibility. They argued that the Appellant's husband did not report to the Headquarter except for one day. An authority from the Patna High Court was presented, emphasizing that attendance marking was not obligatory for suspended employees.
  
  4. Court's Analysis and Rulings:
  The Supreme Court disagreed with the Respondents, highlighting that no rule mandated attendance marking for suspended employees. Referring to a previous case, the Court emphasized that the State must request a certificate if necessary, and without such a request, the claim cannot be rejected. Another case precedent established the entitlement of suspended employees to subsistence allowance due to the employer-employee relationship.
  
  5. Final Decision and Directions:
  The Court ruled in favor of the Appellant, directing her to submit an affidavit confirming her husband's non-engagement in other activities. Upon receipt, the subsistence allowance as per Rule 96 was to be released within four weeks. The Appeal was disposed of with no costs awarded.
  
  This detailed analysis of the judgment provides a comprehensive understanding of the legal issues, arguments presented, relevant legal provisions, court's reasoning, and the final decision rendered by the Supreme Court regarding the claim for subsistence allowance during the suspension period.

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• 2002 (8) TMI 890
  
  Issues Involved:
  1. Conviction under Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act.
  2. Conviction under Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act.
  3. Conviction under Section 365 of the Indian Penal Code.
  
  Issue-wise Detailed Analysis:
  
  1. Conviction under Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act:
  The appellant was convicted under Section 3(5) of the Act, which was challenged on the ground that the alleged offence took place on 18.8.1991, while Section 3(5) was inserted into the Act by Act 43 of 1993, effective from 23.5.1993. The court referred to the precedent set in Kalpnath Rai v. State (Through CBI) 1998CriLJ369, which clarified that for Section 3(5) to apply, the accused must have been a member of a terrorist gang or organization involved in terrorist acts after 23.5.1993. Since the offence occurred before this date, the conviction under Section 3(5) was deemed unsustainable in law.
  
  2. Conviction under Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act:
  The appellant's conviction under Section 3(1) was also challenged. Section 3(1) of the Act defines a "terrorist act" involving the use of bombs, dynamite, firearms, or other lethal weapons with the intent to overawe the government, strike terror, or alienate any section of the people. The court, referring to the interpretation in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors., 1995CriLJ517, found that the ingredients necessary to constitute a "terrorist act" under Section 3(1) were absent in this case. Therefore, the appellant's conviction under Sections 3(1) & (2) of the Act was not tenable in law.
  
  3. Conviction under Section 365 of the Indian Penal Code:
  The court examined whether the conviction under Section 365 IPC (kidnapping or abducting with intent to secretly and wrongfully confine a person) was maintainable. The prosecution presented six witnesses, including P.W.-1 Bhola Kakati, the victim, who testified that he was taken away by the appellant in an ambassador car, blindfolded, and confined for three days. P.W.-4 Rajib Bhuyan, who was alleged to have driven the car, was declared hostile but confirmed in his examination-in-chief that the car was taken by force on the day of the incident. The court found the evidence of P.W.-1 credible and trustworthy, noting that the appellant's involvement was evident despite the hostile witness. The motive behind the kidnapping was to accuse P.W.-1 of passing information to the army about ULFA, which supported the wrongful confinement claim.
  
  The court dismissed the appellant's plea for leniency, emphasizing that human considerations cannot mitigate the severity of crimes that disrupt societal order and violate human rights. The appeal was dismissed, and the conviction under Section 365 IPC was upheld with a sentence of 5 years of rigorous imprisonment, reflecting the gravity of the offence.

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• 2002 (8) TMI 889
  
  The Delhi High Court ruled that rental income from a flat in a multi-storeyed building is assessable under 'Income from house property' even without legal title through a registered sale deed, based on the Supreme Court decision in CIT v. Podar Cement (P) Ltd. The court concluded in favor of the assessed, stating that possession and payment of full consideration can establish ownership for tax purposes.

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• 2002 (8) TMI 888
  
  Issues:
  1. Bail applications of Surinder Kairam and Tarun Kairam in a fraud case involving a partnership agreement and misrepresentation of TV Serial business.
  
  Analysis:
  1. The case involves Surinder Kairam and Tarun Kairam accused of defrauding the complainant of over Rs. 1.5 crores through a criminal conspiracy related to a partnership agreement for a TV Serial business.
  2. The petitioners allegedly misrepresented the purchase of a TV Serial worth Rs. 1.75 lacs for a much higher amount, involving fake entities and bank transactions to deceive the complainant.
  3. Surinder Kairam's counsel argued a civil dispute between the parties, highlighting the attachment of properties and health issues for seeking bail, while Tarun Kairam's counsel requested protection against arrest due to the filing of the charge sheet.
  4. The prosecution opposed bail, emphasizing the gravity of the offense, active complicity of both petitioners, and their attempts to withdraw large sums post-arrest, challenging the credibility of bail applications.
  5. The judgment considered the evidence, concluding that the petitioners engaged in a criminal conspiracy to cheat the complainant, indicating a lack of genuine investment and fraudulent financial transactions.
  6. Surinder Kairam's interim bail on health grounds was questioned based on his active lifestyle post-bail, lack of conclusive medical evidence, and the seriousness of the offense, leading to the dismissal of his bail application.
  7. The deliberate false representation in Surinder Kairam's application regarding prior bail applications and the lack of clean hands further contributed to the rejection of his bail plea.
  8. Tarun Kairam's anticipatory bail was denied due to the filed charge sheet, directing him to seek regular bail from the trial court without any influence from the current judgment, highlighting his significant role in the fraud.
  
  This detailed analysis of the judgment provides a comprehensive overview of the issues involved, the arguments presented by both parties, and the court's decision based on the evidence and legal principles cited in the case.

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• 2002 (8) TMI 887
  
  Judgment: Supreme Court of India dismissed the Civil Appeal. (Citation: 2002 (8) TMI 887 - SC Order) Judges: Mr. N. Santosh Hegde and Mr. Bisheshwar Prasad Singh.

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• 2002 (8) TMI 886
  
  Issues: Review petition for urging additional grounds in the impugned order of allotment of civic amenity site. Compliance with statutory rules and mandatory requirements under Karnataka Urban Development Authorities Rules, 1991.
  
  Analysis:
  1. The matter involved the review petition filed by the petitioner to urge additional grounds in the impugned order of allotment of a civic amenity site. The petitioner relied on Rule 3(3) of the Karnataka Urban Development Authorities (Allotment of Civic Amenity Sites) Rules, 1991, and Rule 7(1) of the Rules, alleging blatant violations by the respondents in passing the impugned allotment order. The Court considered the grounds for reviewing the order as provided under Order 47 Rule 1 CPC and allowed the application for urging additional grounds, as non-consideration of these grounds had vitiated the impugned order. The objections raised by the respondents were deemed inapplicable to the case, and the application was allowed based on the errors apparent on the face of the record.
  
  2. The review petition also challenged the allotment of the civic amenity site to the 3rd respondent, alleging violations of Rules 3(2), 3(3), and 7(1) of the Rules. The petitioner argued that the second respondent failed to comply with mandatory requirements such as due publicity for allotment, examination of applications, and following the prescribed procedures for allotting civic amenity sites. The Court examined the impugned order in light of the statutory rules and found blatant violations by the respondents in passing the resolution without following the required principles and procedures. The Court referred to legal principles emphasizing that acts must be done in the prescribed manner under statutes, and non-compliance renders the actions void in law.
  
  3. The Court noted that the second respondent did not produce any material to show compliance with the mandatory requirement of due publicity as required under Rule 3(3) of the Rules. The failure to follow the statutory and mandatory duties, as highlighted in previous legal judgments, was considered a significant error in passing the impugned resolution. Additionally, the Court found non-compliance with Rule 7(1) in not examining the claims of the parties as per the guiding principles, which further invalidated the impugned order. Despite these violations not being initially raised in the Writ Petition, the Court held that it should have examined the legality and validity of the order, ultimately allowing the review petition and quashing the impugned orders.
  
  4. In conclusion, the Court allowed the review petition, recalled the impugned order, and quashed the impugned orders related to the allotment of the civic amenity site. The Court emphasized the importance of compliance with statutory rules and mandatory requirements in such matters, highlighting the consequences of non-compliance and the need for thorough examination of legal provisions in reviewing orders.

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• 2002 (8) TMI 885
  
  The Madras High Court considered whether interest under sections 139(8) and 217 of the Income Tax Act is leviable for assessment years 1979-80 and 1980-81. The court held that the interest is applicable even if assessments are completed under section 147 read with section 143(3), ruling in favor of the revenue.

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• 2002 (8) TMI 884
  
  Issues:
  1. Criminal contempt of court by an advocate for slapping a magistrate in open court.
  2. Validity of the High Court's decision in finding the advocate guilty of criminal contempt.
  3. Consideration of apology and undertaking by the advocate.
  4. Applicability and interpretation of the Contempt of Courts Act, 1971.
  5. Justification of the sentence awarded by the High Court.
  
  Analysis:
  1. The case involved a rare incident where an advocate slapped a magistrate in open court due to the disallowance of his exemption application, leading to a criminal contempt charge. The court emphasized the importance of harmony between the Bar and the Bench for effective justice delivery.
  
  2. The High Court found the advocate guilty of criminal contempt, stating that his actions lowered the authority of the court and interfered with judicial proceedings. The court referred to legal provisions empowering it to take cognizance of such contempt and concluded that the advocate's behavior scandalized the court.
  
  3. Despite the advocate's apology and offer of an undertaking, the High Court deemed them insincere and not genuine. The court emphasized the need to maintain the purity and majesty of the justice system, rejecting any leniency due to the seriousness of the advocate's conduct.
  
  4. The introduction of the Contempt of Courts Act, 1971 aimed to uphold confidence in the administration of justice. The court highlighted the Act's significance in addressing contemptuous conduct and preserving the sanctity of legal proceedings.
  
  5. Upholding the High Court's decision, the Supreme Court concurred with the findings and observations. The court emphasized the duty to punish contemners to preserve the dignity of the judiciary and ensure the due course of justice. Consequently, the appeal was dismissed, and the advocate was ordered to serve the remaining sentence in custody.

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• 2002 (8) TMI 883
  
  The Supreme Court granted Special Leave to Appeal in a case where the petitioner's complaint under Section 138 of the Negotiable Instruments Act was dismissed due to one day of absence. The High Court's dismissal of the appeal was overturned, and the complaint was restored for trial. The Magistrate was directed to proceed with the trial after issuing formal notices to both parties.

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• 2002 (8) TMI 882
  
  The Calcutta High Court rejected the Revenue's appeal regarding the deduction of interest paid on business loans by the assessee. The assessee had successfully argued its case before the Tribunal, despite the AO's disapproval of interest-free loans given to its subsidiary. The Court noted a similar case for an earlier assessment year and summarily rejected the appeal as it raised only factual questions.

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• 2002 (8) TMI 881
  
  The Supreme Court of India modified the sentence of a case involving a dishonored cheque. A compromise was reached, with the appellant paying Rs. 45,000 in settlement. The court imposed a fine of Rs. 1000 instead of the original six-month imprisonment sentence.

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• 2002 (8) TMI 880
  
  Issues Involved:
  1. Whether the review/recall petition is maintainable against the consent decree.
  2. Whether the husband-respondent obtained the wife-appellant's consent for divorce by fraud, coercion, or undue influence.
  
  Detailed Analysis:
  
  Issue 1: Maintainability of the Review/Recall Petition Against the Consent Decree

  The inherent powers of the Court under Section 151 CPC are very wide and are not in any way controlled by the provisions of the Code. They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them. The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. These limitations are not due to the fact that the inherent power is controlled by the Code, but because it should be presumed that the procedure specifically provided for orders in certain circumstances is dictated by the interests of justice. Inherent powers are to be exercised where specific provision does not meet the necessities of the case.

  By reading the judgments of the Apex Court, we have no hesitation in holding that the review/recall petition would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud, But if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 C.P.C.

  Issue 2: Allegation of Fraud, Coercion, or Undue Influence

  Now we proceed to consider in the present case whether the fraud has been played by the husband-respondent herein on the Court or on the party. For the aforesaid purpose we have to scrutinise the evidence, which was led by the parties to the litigation.

  As stated earlier, the wife-appellant herein herself examined on oath as PW1. According to her evidence, she was married to the husband-respondent herein in Hyderabad on 14-6-1994. About 15 days prior to the marriage, there were marriage talks between her parents and the parents of the husband-respondent herein. The husband-respondent herein demanded rupees three lakhs towards dowry. But the parents of the wife-appellant herein expressed their inability to meet the huge demand of three lakhs. They promised to give some amount in cash and some in kind and the marriage was solemnised. According to the version of the wife-appellant herein, 2 or 3 months after the delivery, the husband-respondent herein demanded Rs. 25 lakhs from her parents for his business. The wife-appellant herein was sent to her parents' house to bring money. Thereafter the mediations took place and the wife-appellant herein was taken to the house of the husband-respondent herein. She lived in the matrimonial house for three years till January, 1999 at "Alliance house". Then they were shifted to the house at West Marredpally. According to her version she went to Lathur along with her husband to attend the marriage of wife's uncle's daughter named 'Rama. Videos and photos were taken. With this part of evidence, the learned senior Counsel Mr. C Pardhasarathy pointed out certain documents filed by the wife-appellant herein. Exs.A1 and A2 are the letters written on two occasions on 29-9-1994 and 12-7-1995. The wife-appellant herein wrote those letters to her mother stating that the husband-respondent herein is demanding money. The learned senior Counsel further pointed out Ex.A-3 certified copy of F.I.R. in Cr.No.264/98 in which the residential address of the husband-respondent herein was given. It is also a complaint filed by both of them alleging that the parents of the wife-appellant herein had kidnapped their son. Ex.A-4 is the office copy of the notice dated 13-9-1999. Advanced wedding card is Ex.A-6 inviting the husband-respondent herein to attend the marriage of Rama. Exs.A-9 to A-32 are the photographs with negatives. Ex.A-33 is the corresponding negative of the programme. With these documents on record, it was contended by the learned Counsel that if there was a divorce, there was no necessity for the relations of the wife-appellant herein to invite the husband-respondent herein to attend the marriage of Rama.

  While rebutting the aforesaid arguments, the learned Counsel Mr. Vilas V. Afzulpurkar submitted at the Bar that the wife-appellant herein and the husband-respondent herein were also otherwise related before their marriage and therefore there was nothing wrong on the part of the uncle of the wife-appellant herein to invite the husband, respondent herein to attend the marriage of his daughter Rama. When both the parties had gone to the marriage, they did not go together but in the function hall they met with each other and some photographs were taken at the time of marriage function. It does not mean that the wife-appellant herein and the husband-respondent herein went together as husband and wife to attend the marriage of Rama.

  The learned senior Counsel Mr. C Pardhasarathy further submitted at the Bar that both the parties were living together. She was threatened from disclosing to any one that a joint petition for divorce was filed. The evidence of the wife-appellant herein discloses that she used to go outside her house for giving phone calls for her parents. She also visited her parents' house on many occasions. She had also gone to the house of her advocate. She also went along with her husband to file a joint petition for divorce. The Family Court Judge recorded her evidence. Even on that occasion she did not speak to any one regarding the threat and coercion given by the husband-respondent herein to sign the joint petition for divorce. She had also admitted that she attended several marriages of her relatives after she filed the joint petition in the Court but she did not inform to any one that her signature was obtained forcibly. She also stated in her evidence that her own brother is an advocate by profession, inspite of this position, she did not inform even to her brother that she was forcibly made to sign the joint petition under Section 13(b) of the Hindu Marriage Act.

  As stated earlier, the evidence of the other witnesses were also led by the wife-appellant herein on her behalf. Their evidence is of no much significance in deciding the issue in question.

  By looking to that conduct of the wife-appellant herein, we are of the considered view that the theory put forward by the wife-appellant herein that she was made to sign the joint petition under coercion and threat is a totally concocted story. Therefore, on facts also we are of the considered view that the wife-appellant herein was not able to prove the fact that the husband-respondent herein had played fraud on her by obtaining the signature for divorce by mutual consent.

  One more argument advanced by the learned senior Counsel Mr. C. Pardhasarathy that no lady would give up the custody of the child and would also give up the right of maintenance. This fact also would prove that her consent to the divorce petition was obtained by playing fraud or coercion or threat on her. We are not in agreement with the submission made by the learned senior Counsel because the wife-appellant herein is an educated lady. She is a graduate. She used to speak and write in English. She had all opportunities to complain to many people if at all the husband-respondent herein played fraud on her but she did not choose to do so. This fact itself is sufficient to prove that on her own accord, she had agreed to sign the divorce petition as the husband-respondent herein used to give mental torture to her by demanding a dowry of Rs. 25 lakhs for doing business. Demanding dowry after so many years of marriage and that is also a huge sum, drew the wife-appellant herein to go for divorce by mutual consent. If she had given up the custody of the child and her right of maintenance, she did so with open eyes for whatever reasons known to her.

  Considering the facts on record, we are convinced that the husband-respondent herein did not play any type of fraud in obtaining her consent for mutual divorce under Section 13(b) of the Hindu Marriage Act and therefore we are of the considered view that there is no merit in the appeal. We further hold that the learned Judge rightly dismissed the said I.A. for reviewing/recalling the petition.

  In the result, the appeal is dismissed. No costs.

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• 2002 (8) TMI 879
  
  Issues Involved:
  1. Conviction u/s 302 read with Section 34 IPC
  2. Evaluation of Evidence and Witness Testimonies
  3. Motive for the Crime
  4. Identification Parade and Independent Witnesses
  5. Delay in Filing FIR
  6. Application of Section 34 IPC
  
  Summary:
  
  1. Conviction u/s 302 read with Section 34 IPC:
  The appellants challenged the High Court's judgment which overturned the trial court's acquittal and convicted them for the offence u/s 302 read with Section 34 IPC, sentencing them to life imprisonment.
  
  2. Evaluation of Evidence and Witness Testimonies:
  The trial court, after examining the evidence, found inconsistencies and acquitted the appellants, giving them the benefit of doubt. The High Court, however, disagreed with the trial court's findings and convicted the appellants based on the testimonies of PWs 1 and 2, which it found credible.
  
  3. Motive for the Crime:
  The trial court held that the prosecution failed to prove the motive, noting the absence of documentation for the site purchase and contradictions in witness testimonies. The High Court dismissed the need for motive, relying on the direct evidence from PWs 1 and 2.
  
  4. Identification Parade and Independent Witnesses:
  The trial court questioned the credibility of PWs 1 and 2 in identifying appellant No. 3 without an identification parade and noted the non-examination of independent witnesses. The High Court accepted the explanation that witnesses were afraid to testify, which the Supreme Court found unconvincing.
  
  5. Delay in Filing FIR:
  The trial court noted a four-hour delay in filing the FIR, suggesting the incident might have occurred later than claimed. The High Court did not adequately address this delay, which the Supreme Court found significant.
  
  6. Application of Section 34 IPC:
  The High Court applied Section 34 IPC to convict the appellants, despite the trial court only charging them u/s 302 IPC. The Supreme Court found no evidence of common intention among the appellants to commit murder, making the application of Section 34 IPC unsustainable.
  
  Conclusion:
  The Supreme Court set aside the High Court's judgment, restoring the trial court's acquittal. The appellants were ordered to be released immediately if not required in any other case.

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• 2002 (8) TMI 878
  
  Issues Involved:
  1. Interplay of the Benami Transactions (Prohibition) Act, 1988 with the Indian Trusts Act, 1982.
  2. Application for amendment of the plaint under Order 6, Rule 17 of the Code of Civil Procedure.
  3. Whether the proposed amendment is hit by the Benami Transactions (Prohibition) Act, 1988.
  4. Interpretation of fiduciary capacity under Section 4(3)(b) of the Benami Act.
  
  Detailed Analysis:
  
  1. Interplay of the Benami Transactions (Prohibition) Act, 1988 with the Indian Trusts Act, 1982:
  The judgment discusses the deletion of Sections 81 & 82 in Chapter IX of the Indian Trusts Act, 1982, by the Benami Transactions (Prohibition) Act, 1988. This deletion indicates the legislative intent to not allow the pre-1988 concepts of trusteeship or fiduciary capacity to continue as defenses against the prohibition of benami transactions.
  
  2. Application for amendment of the plaint under Order 6, Rule 17 of the Code of Civil Procedure:
  The plaintiff sought to amend the plaint to include properties allegedly purchased by Smt. Raj Rani Bhasin in the name of defendant No. 3, claiming these properties were held in trust for her benefit and are liable to be partitioned. The defendant objected, arguing that the proposed amendments were prohibited by the Benami Transactions (Prohibition) Act, 1988.
  
  3. Whether the proposed amendment is hit by the Benami Transactions (Prohibition) Act, 1988:
  The defendant argued that the proposed amendments were clearly hit by the Benami Transactions (Prohibition) Act, 1988, as the transactions described by the plaintiff fit the definition of "benami transaction" under Section 2(a) of the Act. The court agreed, noting that the transaction described by the plaintiff, where the mother paid for the property but it was purchased in the name of her son (defendant No. 3), is a benami transaction and thus prohibited by Sections 3 and 4 of the Act.
  
  4. Interpretation of fiduciary capacity under Section 4(3)(b) of the Benami Act:
  The plaintiff relied on the proviso to Section 4 of the Benami Act, which excludes from the prohibition situations where the property is held by a trustee or in a fiduciary capacity. However, the court clarified that after the repeal of Sections 81 and 82 of the Indian Trusts Act, 1882, only specific instances of fiduciary capacity, such as property held by a partner in a partnership firm, are excluded from the prohibition. The court distinguished between a genuine fiduciary relationship and a benami transaction, concluding that the plaintiff's case did not fall within the fiduciary exception provided in Section 4(3)(b).
  
  Conclusion:
  The court dismissed the application for amendment, holding that the proposed amendments were barred by the Benami Transactions (Prohibition) Act, 1988. The court emphasized that the legislative intent was to prohibit benami transactions and not allow defenses based on trusteeship or fiduciary capacity as they existed before the 1988 amendments. The judgment reflects a strict interpretation of the Benami Transactions (Prohibition) Act, ensuring that its prohibitions are effectively enforced.

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• 2002 (8) TMI 877
  
  Issues Involved:
  1. Specific performance of the contract for sale.
  2. Readiness and willingness of the plaintiff.
  3. Time as essence of the contract.
  4. Discretionary power of the court under Section 20 of the Specific Relief Act (SR Act).
  5. Admissibility of additional evidence under Order 41 Rule 27 CPC.
  6. Rights of subsequent purchasers under Section 52 of the Transfer of Property Act.
  7. Lis pendens.
  
  Detailed Analysis:
  
  1. Specific performance of the contract for sale:
  The appeals challenge the judgment and decree dated 31st August 1999 by the Civil Judge, Senior Division, Alipore, ordering specific performance of a contract for the sale of 1/7th share of the defendant No. 1 in the suit property. The decree was contested by both the original vendor (defendant No. 1) and the subsequent purchaser (defendant No. 2).
  
  2. Readiness and willingness of the plaintiff:
  The plaintiff's readiness and willingness to perform the contract were scrutinized. The appellant argued that the plaintiff was not consistently ready and willing to perform the essential terms of the contract, particularly redeeming the property from a mortgage with LIC. The court emphasized that under Section 16 of the SR Act, the plaintiff must prove continuous readiness and willingness. The plaintiff's insistence on a marketable title free from encumbrances, contrary to the agreed terms, indicated a lack of readiness and willingness.
  
  3. Time as essence of the contract:
  The court examined whether time was the essence of the contract. Despite the general presumption against time being essence in immovable property contracts, the specific terms of the agreement and the surrounding circumstances indicated urgency. The contract stipulated a three-month period for completion, extendable to six months, beyond which the agreement would be void. The court concluded that time was indeed the essence of the contract, given the mounting interest on the mortgage and the pending confirmation of an auction sale.
  
  4. Discretionary power of the court under Section 20 of the SR Act:
  Section 20 of the SR Act grants the court discretionary power in decreeing specific performance. The court must consider whether such a decree would result in unfair advantage or hardship. The court found that enforcing specific performance would unfairly benefit the plaintiff and impose hardship on the defendants, especially since the defendant No. 2 had already redeemed the property from the mortgage and resolved related legal issues.
  
  5. Admissibility of additional evidence under Order 41 Rule 27 CPC:
  The defendant No. 2 sought to introduce additional evidence under Order 41 Rule 27 CPC, which included court orders and documents relevant to the mortgage and subsequent transactions. The court allowed this application, recognizing that the evidence was necessary for a comprehensive judgment and that the defendant was previously precluded from contesting certain issues due to the prevailing legal interpretation.
  
  6. Rights of subsequent purchasers under Section 52 of the Transfer of Property Act:
  The court addressed the rights of the subsequent purchaser (defendant No. 2), who bought the property during the pendency of the suit. The principle of lis pendens under Section 52 of the Transfer of Property Act applied, making the subsequent purchase subject to the outcome of the ongoing litigation. The court noted that the defendant No. 2 could contest the plaintiff's readiness and willingness due to the change in legal interpretation by the Supreme Court.
  
  7. Lis pendens:
  The court reiterated that the transfer to defendant No. 2 during the pendency of the suit was subject to the doctrine of lis pendens, which binds the subsequent purchaser to the results of the pending litigation. This doctrine aims to prevent the transfer of property rights that could affect the outcome of a legal dispute.
  
  Conclusion:
  The court concluded that the plaintiff was not ready and willing to perform the essential terms of the contract, time was the essence of the contract, and granting specific performance would be inequitable. The appeals were allowed, setting aside the decree for specific performance and instead awarding damages to the plaintiff. The defendant No. 1 was directed to refund the earnest money with additional damages, while the suit was dismissed against defendant No. 2.

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• 2002 (8) TMI 876
  
  Issues Involved:
  1. Jurisdiction and propriety of the proceedings.
  2. Validity of the import licenses and whether they were forged.
  3. Existence of M/s. Agrico Industries and its proprietor, Shri Toshilaya.
  4. Denial of principles of natural justice due to non-allowance of cross-examination.
  5. Appropriate penalties and fines.
  
  Detailed Analysis:
  
  1. Jurisdiction and Propriety of the Proceedings:
  The appellants challenged the issuance of the Show Cause Notice under Section 124 of the Customs Act, 1962, arguing that the matter should have been reopened via Sections 28 or 129D(4) of the Customs Act. The Tribunal found that the assessments were not completed as the examination of goods, an essential part of the process, was pending. Thus, the department was justified in issuing a notice under Section 124 and the Collector was within his jurisdiction to adjudicate the case.
  
  2. Validity of the Import Licenses:
  The Tribunal found that the endorsements on the licenses were forged based on the statement and affidavits of Shri L. Kharmalong, Controller of Imports and Exports, Shillong. However, the Tribunal noted that the department did not obtain an expert opinion on the alleged forgery, nor did they verify the records of the Controller's office. The Tribunal concluded that the endorsements were forged but reduced the penalties considering the appellant acted in good faith as a letter of authority holder.
  
  3. Existence of M/s. Agrico Industries:
  The Tribunal observed that the department's inquiries were insufficient as they did not cover all the addresses associated with M/s. Agrico Industries. The appellants provided documents indicating the existence of M/s. Agrico Industries during 1981-84. The Tribunal found that the department failed to cross-check these documents with relevant authorities and concluded that there was insufficient evidence to definitively prove the non-existence of M/s. Agrico Industries.
  
  4. Denial of Principles of Natural Justice:
  The Tribunal held that the denial of cross-examination of Shri Kharmalong constituted a violation of natural justice. The Tribunal emphasized that cross-examination was necessary, especially when the department's case heavily relied on Shri Kharmalong's statements and no expert opinion was obtained.
  
  5. Appropriate Penalties and Fines:
  The Tribunal reduced the fines and penalties imposed by the Collector. In Appeal No. C-305/86-Cal., the fine was reduced from Rs. 4.50 lakhs to Rs. 1.50 lakhs, and the penalty on Shri G.R. Agarwal was reduced from Rs. 1 lakh to Rs. 33,000. In Appeal No. C-306/86-Cal., the fine was reduced from Rs. 21 lakhs to Rs. 7 lakhs, and the penalty on Shri G.R. Agarwal was reduced from Rs. 4 lakhs to Rs. 1.33 lakhs.
  
  Conclusion:
  The Tribunal, by majority decision, reduced the fines and penalties imposed by the Collector, taking into account the long duration of the case and the appellant's good faith in acting as a letter of authority holder. The Tribunal found that the remand would be a futile exercise given the age of the case and the unavailability of records.

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• 2002 (8) TMI 875
  
  Issues Involved:
  1. Applicability of the Apex Court decision in U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors.
  2. Non-communication of adverse remarks in the Annual Confidential Report (ACR).
  3. Malice alleged against a respondent.
  4. Procedure adopted by the Departmental Promotion Committee (DPC).
  5. Tribunal's failure to address relevant legal questions.
  6. Judicial review of administrative actions.
  
  Detailed Analysis:
  
  1. Applicability of the Apex Court Decision in U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors.:
  The primary issue in this case was whether the decision of the Apex Court in U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. was applicable. The court noted that the Apex Court had held that even downgrading from 'very good' to 'good' should be communicated to the employee, allowing them to make a representation. This principle was relevant to the petitioner's claim that non-communication of his downgraded ACRs affected his promotion prospects.
  
  2. Non-communication of Adverse Remarks in the ACR:
  The petitioner argued that his ACRs, which were downgraded from 'very good' to 'good', were not communicated to him, violating Rule 9 of the CPWD Service Manual. The court acknowledged that the petitioner's ACRs for the years 1992-93, 1993-94, and 1995-96 were marked 'good' without communication, which was necessary to prevent detriment to his service prospects.
  
  3. Malice Alleged Against a Respondent:
  The petitioner alleged malice against respondent No. 7, claiming that this was not considered by the Tribunal. The court did not delve deeply into this issue but noted its presence in the petitioner's original application.
  
  4. Procedure Adopted by the DPC:
  The court criticized the Tribunal's acceptance of the DPC's procedure, which relied solely on ACRs without written exams or interviews. The DPC's grading was based on ACRs, but the court found that the DPC should have re-evaluated the petitioner's case without the uncommunicated 'good' remarks, following the Apex Court's guidance.
  
  5. Tribunal's Failure to Address Relevant Legal Questions:
  The Tribunal failed to address whether the non-communication of downgraded ACRs, as required by the Apex Court's decision and CPWD rules, invalidated the DPC's decision. The Tribunal incorrectly focused on whether the DPC's rating was correct rather than the legality of the non-communication.
  
  6. Judicial Review of Administrative Actions:
  The court emphasized that judicial review is warranted when an authority ignores relevant facts or considers irrelevant ones. The Tribunal's failure to remand the matter to the DPC for reconsideration, ignoring the 'good' remarks, was a significant error. The court cited various judgments reinforcing that uncommunicated adverse records cannot be considered by the authority.
  
  Conclusion:
  The writ petition was allowed, the Tribunal's judgment was set aside, and the matter was remitted back to the DPC for fresh consideration of the petitioner's promotion, excluding the uncommunicated 'good' remarks. No order as to costs was made.

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