Sunday, May 16, 2010
Wakf Act — Review of own order.
Wakf Act, 1995 — Review of own order — Order obtained by playing fraud — Even in the absence of any express provision the CEO is empowered to review / recall his own order. See 2010 (5) LJSOFT (URC) (AUR) 3
Succession _ Widow.
Succession — Successor-in-interest is not a successor-in-title — Successor-in-title succeeds upon succession either testamentary or intestate — Widow of the original owner — Her claim upon succession is not a claim as a successor-in-interest but a successor-in-title. See 2010 (5) LJSOFT 69
Succession — Nomination of shares.
Succession — Nomination of shares — Nominee has the right to the shares after the death of original shareholder and not the heirs of deceased — Specific statutory provision make the nominee entitled to all the rights in the shares excluding all other persons. See 2010 (5) LJSOFT (URC) 12
Sales tax — Levy of — Steam.
Sales tax — Levy of — Steam cannot be classified under the Notification Entry No.233 as the same is not chemical. See 2010 (5) LJSOFT (URC) 34
Quasi-judicial proceedings
Quasi-judicial proceedings — Guidelines or directions cannot encroach upon the discretion conferred by Rules upon any appellate authority and restrict its application of mind or attempt to cut the process of adjudication. See 2010 (5) LJSOFT (NAG) 195
Public premises
Public premises — Petition against order of Principal Judge under Public Premises Act — Jurisdiction of the Division Bench is not totally ousted. See 2010 (5) LJSOFT 66
Public servant disobeying law
Public servant disobeying law — Only be a natural person can be charged with an offence punishable u/s 166 coupled with a fact that he is a public servant — Offence u/s 166 cannot be against a particular office but it can only be against a person who holds an office. See 2010 (5) LJSOFT (URC) 8
Public premises
Public premises — District Judge when acting as Appellate Authority acts as a persona designata and hence no revision lies. See 2010 (5) LJSOFT 66
Motor accident — Minor child — Compensation.
Motor accident — Minor child aged 11 years — Cannot be said that victims below the age of 15 years are to be excluded — 'Loss of future income' as a head of compensation applies to all persons whether earning or not at the time. See 2010 (5) LJSOFT 170
Motor accident — Compensation.
Motor accident — Findings of Tribunal — Where the claimant does not prefer any cross-objection against the finding recorded by the Tribunal that finding must be said to have assumed finality under Order 41 Rule 22 of CPC. See 2010 (5) LJSOFT (URC) (NAG) 7
Medical negligence.
Medical negligence — Offence punishable u/s 315 of IPC — Intention is one of the major ingredient. See 2010 (5) LJSOFT (AUR) 95
Maintenance — Second wife/ mistress.
Maintenance — Second wife/ mistress — Applicant have recourse to the provisions of Protection of Women From Domestic Violence Act. See 2010 (5) LJSOFT (URC) (NAG) 13
Interest — Delay in payment of decretal amount.
Interest — Delay in payment of decretal amount — An action only for interest is not unusual — Delay in payment of the decretal amount furnishes an independent cause of action for payment of interest on account of such delay — Claim maintainable u/s 3(1)(a), 3(1)(b) and u/s 4 of the Interest Act — Court in exercise of powers under Article 226 can also grant interest in such a a case. See 2010 (5) LJSOFT 87
Income tax — Re-opening of assessment.
Income tax — Re-opening of assessment — Reasons recorded cannot be allowed to grow with age and ingenuity by devising new grounds in replies and affidavits — Reasons which are recorded cannot be supplemented by affidavits. See 2010 (5) LJSOFT 68
ESI Act — Applicability of.
ESI Act — Applicability of — Gas lighter with a flame was being used for melting and soldering the gold and other ornaments — Use of LGP satisfies the definition of power — Manufacturing process was going on with aid of power. See 2010 (5) LJSOFT (URC) (GOA) 30
Divorce — Mental cruelty — Filing of false criminal case.
Divorce — Mental cruelty — Filing of false criminal case — Solitary incidence would itself constitute mental cruelty — It is illogical that more than one complaint are necessary to be filed to constitute mental cruelty. See 2010 (5) LJSOFT (URC) 29
Grant of bail _ Confession of co-accused.
Bail — Grant of — Offence under POTA — Accomplice evidence is of a tainted character and as such is a weak evidence — Confession of co-accused cannot be read against the appellant while considering his plea for bail. See 2010 (5) LJSOFT 67
Porn websites _ Ban on.
Porn websites _ Person aggrieved by web content could file complaint u/s 67 and 67A of Information Technology Act _ Court turned down a public interest litigation seeking a blanket ban on websites with sexual content on the internet. See 2010 (4) LJSOFT (URC) 18
Secondary evidence
Secondary evidence _ Xerox copies prepared from xerox copies not covered under the ambit of secondary evidence as per the provisions of section 63(2) of Evidence Act. See 2010 (4) LJSOFT (URC) 9
Right of fair trial
Right of fair trial _ Accused should know allegations made against him and have a copy of the F.I.R. at the earliest stage even before his arrest _ Accused entitled to a certified copy of the F.I.R. from the officer in charge of the police station _ Applicant entitled to interim protection pending receipt of a copy of the F.I.R. See 2010 (4) LJSOFT (URC) 17
Public Trust _ Secretary _ Withdrawal of powers.
Public Trust _ Post of secretary _ There is no concept such as withdrawal of power and the person holding such post himself has to be removed. See 2010 (4) LJSOFT 164
Municipal Corporation _ Service of notice.
Municipal Corporation _ Pre suit statutory notice as required u/s 384 not necessary before the institution of the suit against an apprehended injury. See 2010 (4) LJSOFT 70
Motor accident _ Contributory negligence.
Motor accident _ Merely because two vehicles are involved it could not be inferred that it is a case of contributory negligence _ It has to be specifically pleaded and proved on the basis of preponderance of probabilities. See 2010 (4) LJSOFT 123
Mahomedan Law _ Re-marriage after talak.
Mahomedan Law _ Re-marriage after talak _ Not necessary that the Halala formality must be complied with by the wife in case of every irrevocable Talak irrespective of its mode _ Only in case of a triple Talak, re-marriage with the same husband is legal and valid if Halala is observed _ In case of a talak in the Ahsan mode Halala is not mandatory. See 2010 (4) LJSOFT (URC) 6
Eviction proceedings _ Leave and Licence agreement _ Arbitration clause.
Eviction proceedings _ Leave and Licence agreement _ Recourse to arbitration under the terms of arbitration clause would be barred by virtue of exclusive jurisdiction conferred upon the court of Small Causes by section 41(1) of the Act of 1882. See 2010 (4) LJSOFT 160
Divorce _ Non-resident Indian.
Divorce _ Non-resident Indian _ Parties married in Mumbai according to Hindu rites _ Parties are domiciled in US and not in India _ Hindu Marriage Act not applicable. See 2010 (4) LJSOFT (URC) 15
Dishonour of cheques _ Winding up proceedings.
Dishonour of cheques _ After winding up proceedings and appointment of provisional Official Liquidator the directors of the company have no power to deal with the property or assets of the company _ Order of issuance of process qua the petitioners is quashed and set aside. See 2010 (4) LJSOFT 5
Dishonour of cheque _ Blank cheque.
Dishonour of cheque _ Blank cheque filled in without verifying what was the amount actually due as on the date of the cheque _ Complainant could not have any implied authority to fill an amount which was not due and payable to the complainant. See 2010 (4) LJSOFT 180
Dishonour of cheque _ Appointment of Official Liquidator
Dishonour of cheque _ Appointment of Official Liquidator _ Proceedings u/s 138 are not covered by the phrase "legal proceedings" or "other legal proceedings" _ There is no bar u/s 446(1) of the Companies Act in so far as proceedings u/s 138 are concerned. See 2010 (4) LJSOFT 54
Language in Criminal Courts
Criminal trial _ Language in Criminal Courts _ Government notification dated 21-7-1988 _ Except in respect of the matters mentioned in the Schedule to the order the language of the criminal court would be Marathi _ Revision application cannot be in Marathi _ Revision application written in Marathi was not in the language of the court and was liable to be rejected. See 2010 (4) LJSOFT 112
Bail
Bail _ Confessional statement of the co-accused cannot be the starting point of the marshalling of evidence _ It cannot be looked into as the principal evidence even at the stage of consideration of the application for bail. See 2010 (4) LJSOFT (URC) 14
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