SUPREME COURT

• CIVIL LAWS

Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Ors Decided on 09.10.2009 MANU/SC/1724/2009

Amendment of Pleadings - Order VI Rule 17 of the Code of Civil Procedure, 1908 -Parameters to deal with application for amendment - Determination thereof - Whether the amendment sought in the instant case imperative and bona fide or mala fide

The decision on an application made under Order VI Rule 17 is a very serious judicial exercise, which should never be undertaken in a casual manner. It is one of the important but most misused provisions of the Code for dragging the proceedings indefinitely.

The first condition which, must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. The other important condition, which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any Court grants actual costs to the opposite side. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment, however the costs cannot and should not be imposed arbitrarily. The following parameters, which are illustrative and not exhaustive in nature, must be taken into consideration while imposing the costs -- (i) At what stage the amendment was sought? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii) The financial benefit derived by one par- ty at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly; (iv) The imposition of costs should not be symbolic but realistic; (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs; (vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs.

While allowing or rejecting the application for amendment, it should be considered as to whether the amendment sought is imperative for proper and effective adjudication of the case; whether the application for amendment is bona fide or mala fide; The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; Refusing amendment would in fact lead to injustice or lead to multi- ple litigation; Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

In the instant case application for amendment was dismissed with costs of Rs. 1, 00,000/- because the Respondents were compelled to oppose the amendment application before different Courts. Appeal dismissed.

• SERVICE LAWS

Baswant Shankarappa Swami Vs. State of Maharashtra and Ors Decided on 09.10.2009 MANU/SC/1715/2009

Dismissal of Writ Petition by non- reasoned order - Constitutional validity of Rule 3 of the Irrigation Department (Recruitment Rules), 1996 was questioned - High Court observed that neither before the Tribunal nor before them it was substantiated as to how Rule 3 was ultra vires the Constitution and accordingly dismissed the petition

The High Court gave no reasons as to why the contention raised in challenging the vires of Rule 3 did not merit acceptance except saying that it has not been sustained as to how Rule 3 was ultra vires the Constitution. The consideration of the issue by the High Court concerning vires of Rule 3 was far from satisfactory. The matter accordingly reverted back to High Court for fresh consideration on grounds of non-recording of reasons and non-consideration of the contentions raised by the Appellant in challenging the constitutional validity of Rule 3.

• PROPERTY LAWS

Babu Ram Vs. State of Haryana Decided on 07.10.2009 MANU/SC/1714/2009

Acquisition of Land - Dispute as to the acquisition of land by the state under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894 for construction of sewage treatment plant - Acquisition challenged on the ground that no reason was indicated to exclude the operation of Section 5A of the Act and the land in question was proximate to residential colony and school

Based on the averments and photographs it appeared that the site was still lying unutilized. Accordingly, Appellants should get an opportunity to file their objections to the proposed acquisition under Section 5A of the Land Acquisition Act and the Respondents would be at liberty to take consequential steps after disposal of the same. The Appellants would be at liberty to file objections under Section 5A of the Act within the time specified before the concerned authority, who would thereafter, dispose of the same upon giving the objectors, if any, an opportunity of hearing and placing their respective cases.

• CRIMINAL LAWS

Sohan Singh and Anr. Vs. State of Bihar Decided on 09.10.2009 MANU/SC/1716/2009

Conviction - Appellants charged and prosecuted for commission of offence under Section 376(2)(g) of the Indian Penal Code, 1860 - Conviction challenged on the ground of non-assignment of plausible or valid reasons for delayed FIR, no external or internal injuries present on the body of the victim or even on her private parts and false implication of the Appellants due to enmities between families

No reasons found to doubt the truthfulness of the evidence so deposed by the concerned three witnesses. On the issue of delay in lodging the FIR, it was held as not an inordinate delay. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge FIR. The prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR and this held to be as apparent the reason for little delayed FIR. The prosecutrix was already a married lady and, therefore, it was not necessary that some external or internal injuries should have been found on her person. Enmity between the two families would not lead to such a serious consequence of lodging FIR of commission of gang rape by the Appellants. No merit or substance in held to be present in the instant appeal and was accordingly dismissed.

Sebastian @ Chevithiyan Vs. State of Kerala Decided on 09.10.2009 MANU/SC/1717/2009

Substitution of punishment from Death penalty to Imprisonment - Conviction under Sections 302, 364, 369, 376(f), 392 and 449 of the Indian Penal Code, 1860 - Death sentence awarded to Appellant for the offence committed under Section 302 of the IPC - Case contended to be based on circumstantial evidence

The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an Appellant comes to Court carrying a death sentence awarded by the trial court and confirmed by the High Court, it may be found that the case just falls short of the rarest of the rare category and thus reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all. The instant case held to be a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. Accordingly death sentence given to the Appellant and confirmed by the High Court substituted by imprisonment for life with a direction that he should not be released from prison till the rest of his life.

HIGH COURTS

• CRIMINAL LAWS

Delhi High Court

Sunil Kapoor Vs. State Decided on 06.10.2009 MANU/DE/2553/2009

Quashing of Complaint - Section 482 of the Code of Criminal Procedure, 1973 - Ground and circumstances of quashing - Sustainability of criminal complaint in a dispute of civil nature or where already civil action initiated

As held in the case of State of Haryana v. Bhajan Lal MANU/SC/0012/1992, the illustrative categories where complaint/FIR can be quashed if the facts would fall in the following categories i.e.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code; (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge

The complainant in the instant case not only filed the civil suit but also filed a complaint, then again without disclosing filing of the first complaint filed a second complaint, which apparently a misuse of the process of Court. All the three circumstances which permits this Court to exercise its inherent powers under Section 482 Cr.P.C. i.e. (i) grave injustice would be caused against the petitioner if the complaint is allowed to be continued; (ii) the process of court is being abused; and (iii) the evidence which is sought to be relied upon is not sufficient which may convict the petitioner even if the complainant is allowed to go for a full dress trial in the present case. Proceedings quashed and Petition was allowed.

Bombay High Court

Kum. Manjula Govind Shetye and Smt. Godavari Govind Shetye (Both Present in Jail) Vs. The State of Maharashtra Decided on 08.10.2009 MANU/MH/1119/2009

Dying declaration - Conviction based thereon for offence punishable under section 302 r/w section 34 of the Indian Penal Code, 1860 under challenge

The appellants have tried to show and suggest that they received some burn injuries. No evidence in that regard is produced by the prosecution. They have also not caused any such evidence to be produced. However, their medical certificates show that the thumbs of Appellant No. 1 and 4 fingers of the left hand of Appellant No. 2 were burnt. They received 2.4% Burns. These injuries do not show any effort put in by the Appellants to extinguish the fire. In fact, these injuries show the slight burns suffered by Appellant No. 1 immediately upon her pouring kerosene on the person of the deceased and the injuries on the fingers of the left hand of Appellant No. 2, in fact, corroborate her role of pushing the deceased onto the burning stove after she was doused with kerosene. This further corroborates the aforesaid written dying declarations. The evidence recorded by the prosecution, including the cross-examination made on behalf of the accused, leaves no manner of doubt that the deceased died a homicidal death as stated by her initially to the police officer and then to the SEM which has been recorded in the two dying declarations, Exhibit-18A and Exhibit-14 respectively after obtaining the endorsement of the Doctor, Exhibit-18. The conviction recorded by the learned trial Judge based upon such clear, cogent and reliable evidence is, therefore, seen to be correct.

• TENANCY LAWS

Delhi High Court

Shri Madhu Sudan S/o Sh. Satyanarayan Vs. Smt. Valsala Jayamani W/o Sh. A. Jayamani Decided on 14.10.2009 MANU/DE/2609/2009

Application under Order XXXIX Rule 10 r/w Section 151 of the Code of Civil Procedure, 1908 - Appellant a tenant in the property owned by Respondent - Appellant allegedly in arrears of rent since long - Appellant stated that provisions of Order XXXIX Rule 10 of the Code are applicable only when a party admits that he holds money or other thing capable of delivery as a trustee for another party - Appellant also contended that Respondent had entered into an agreement to sell the suit property to the Appellant and there is no relationship of landlord and tenant

As per appellant's own averments, he was held to be taking contradictory stand. On the one hand, he admits the execution of lease agreement while, on the other hand, he denied its execution and claimed that there was an agreement to sell the property in question. Appellant himself not sure in his mind as to whether he is a tenant or lessee or owner of the property in question, possession of which he claims by virtue of making part payment towards the sale consideration. According to provision in question, where rent is payable and liability to pay is admitted, the Court can order deposit of arrears of rent in the court. Appellant did not placed on record any agreement to sell, to substantiate his contentions.

The appeal filed by Appellant held to be most bogus and frivolous one. Appellant was enjoying the property, without paying any rent/occupation charges, since the period in question and had also no intention to pay the same. Appellant to a great extent was successful in frustrating Respondent-owner efforts to get her legal due that is, either the rent or possession. Appeal held to be nothing but is gross abuse of the process of law thus dismissed.

• COMMERCIAL LAWS

Madras High Court

Garware-Wall Ropes Limited Geosynthetic Division Vs. Marg Limited (Formerly Marg Constructions Ltd.) and Federal Bank Ltd. Decided on 12.10.2009 MANU/TN/2760/2009

Interim Injunction - Principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit - Appellant sought to be restrained from claiming or demanding any amount under the letter of credit in issue or under the amended one issued by the second Respondent without delivery of materials at the site and consequently restraining the second Respondent from effecting any payment to the Appellant under the letter of credit

While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract. The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit. Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit. Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation. Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned. Thus when an unconditional letter of credit was given, the beneficiary was entitled to realise in terms thereof irrespective of any pending dispute relating to the terms of the contract. The bank, which gives such guarantee, was bound to honour as per its terms irrespective of any dispute raised by its customer. The Courts should not grant an order of injunction to restrain the realisation of the letter of credit as a matter of course but should be slow. To the above, the Apex Court has given two exceptions namely (i) Fraud of an egregious nature which would vitiate the very foundation of such a letter of credit and the beneficiary is attempting to take advantage of the situation; and (ii) If the encashment of an unconditional letter of credit is allowed, it would result in irretrievable harm or injustice to one of the parties concerned. In the instant case admittedly, the materials were not been actually delivered and also they were in the custody of the Appellant/first defendant. The case of the appellant is that it is true that it was not delivered because there was a refusal to take delivery of the materials by the first respondent/plaintiff when an attempt was made. The Appellant/first defendant held to be not entitled to negotiate the letter of credit in question. In the instant case, in the considered opinion of the Court, both the exceptional circumstances were noticed. Instant case fit and proper case where interim injunction has got to be granted. Appeal fails and thus dismissed.