SUPREME COURT

• ARBITRATION

The Branch Manager, Magma Leasing and Finance Limited and Anr. Vs. Potluri Madhavilata and Anr. (Decided on 18.09.2009) MANU/SC/1672/2009

The hire purchase agreement between the parties contained Clause 22 as Arbitration Clause - Performance of contract came to an end on account of termination due to breach - Whether the arbitration agreement survive for the purpose of resolution of disputes arising under or in connection with the contract even if its performance has come to an end on account of termination due to breach - Whether the trial court must refer the parties to arbitration under Section 8 of the Arbitration Act?

Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising "in respect of" or "with regard to" or "under" the contract. Clause 22 of the hire purchase agreement that provides for arbitration has been couched in widest possible terms as can well be imagined. It embraces all disputes, differences, claims and questions between the parties arising out of the said agreement or in any way relating thereto. Since, the hire purchase agreement was admittedly entered into between the parties and the disputes and differences had since arisen between them, the Supreme Court held that the arbitration Clause 22 survives for the purpose of their resolution although the contract has come to an end on account of its termination. As regards to the referring of case for Arbitration under Section 8, it was observed that the following conditions must be satisfied: (a) that there exists an arbitration agreement; (b) that action has been brought to the court by one party to the arbitration agreement against the other party; (c) that the subject matter of the suit is same as the subject matter of the arbitration agreement; (d) that the other party before he submits his first statement of the substance of the dispute, moves the court for referring the parties to arbitration; and (e) that along with the application the other party tenders the original arbitration agreement or duly certified copy thereof.

• CRIMINAL

Jagdish Vs. State of Madhya Pradesh (Decided on 18.9.2009) MANU/SC/1673/2009

Death sentence under Section 302 of the Indian Penal Code - Article 21 of the Constitution of India - Appellant challenges the conviction to be set aside on grounds of unsound mind and lapse of three years between the sentence of death awarded by the Sessions Judge and the hearing of the appeal - Whether the death sentence ought to be converted to one for life in the wake of the delay in the execution of the death sentence and the agony and torment that the appellant has been subjected to?

The underlying principles of the Eighth Amendment with regard to the infliction of a cruel and unusual punishment has its echo in Article 21 of our Constitution as well and it would, therefore, be open to a condemned prisoner, who has been under a sentence of death over a long period of time, for reasons not attributable to him, to contend that the death sentence should be commuted to one of life. The power of the President and the Governor to grant pardon, etc. under Articles 72 and 161 of our Constitution though couched in imperative terms, has nevertheless to be exercised on the advice of the executive authority. In this background, it is the Government which, in effect, exercises that power. The condemned prisoner and his suffering relatives have, therefore, a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner. In the light of the facts of present case, it was held that that there was no delay.

• ELECTION

Ram Sukh Vs. Dinesh Aggarwal (Decided on 18.09.2009) MANU/SC/1667/2009

Scope and ambit of Section 83 of the Representation of People Act, 1951 - Petitioner challenged the election of the first Respondent under section 80 read with section 100(1)(b) and (d) of the Representation of the People Act, 1951 - High Court dismissed the petition on grounds that it did not comply with the mandatory requirement of furnishing material facts so as to disclose cause of action and was not supported by an affidavit in prescribed form - Whether the election petition lacked "material facts" required to be stated in the election petition in terms of Section 83(1) of the Act and if so, could it be dismissed summarily without trial?

The instructions contained in the Handbook for The instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration was whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. As the question for consideration in this case was whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election results, it was observed that the pleading is vague and does not spell out as to how the election results were materially affected. It falls short of being "material facts" as contemplated in Section 83(1) (a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1) (d) (iv) of the Act. It was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first Respondent, was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition.

• TENANCY

Laxmidas Morarji (Dead ) by Lrs. Vs. Miss Behrose Darab Madan (Decided on 18.09.2009) MANU/SC/1675/2009

Jurisdiction of the Small Clause Court under Section 28 to decide on issues arising out of the Bombay Rent Act - Whether the suit filed by the owner of the suit premises was maintainable before the Small Causes Court, Bombay as appellants do not consider Respondent as a tenant and can the Supreme Court exercise its power under Article 142 to direct the Respondent to vacate the premises?

The Rent Control Act imposes restrictions on the right of landlord to evict his tenants on the grounds other than what is specified in the Statute. In a suit relating to possession of the premises where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the courts specified in Section 28. In the instant case in view of Section 28 of the Act, the Court of Small Causes, Bombay, will have no jurisdiction as the suit is maintainable only when the landlord-tenant relationship is established. It is for the civil courts to determine whether and if so, what jural relationship exists between the litigating parties. As regards to the contention of exercising of power by Supreme Court under Article 142, it was observed that the Supreme Court cannot pass an order or grant relief, which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties. Despite an extraordinary constituted jurisdiction contained in Article 142 of the Constitution, the Supreme Court ordinarily would not pass an order which would be in contravention of a statutory provision.

• CIVIL

Surender Kumar Sharma v Makhan Singh (Decided on 18.09.2009) MANU/SC/1674/2009

Amendment of plaint filed in a suit for eviction - Trial court rejects the application on grounds that the prayer for amendment was belated - High Court in revision also affirms the order of the Trial court rejecting the application for amendment of plaint holding that not only was it belated but also that if allowed it would change the nature and character of the suit - Whether the Trial court and the High Court in its revisional jurisdiction have fallen in grave error in refusing amendment of the plaint?

Under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Mere delay and latches in making the application for amendment cannot be a ground to refuse amendment. Even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment the suit would remain a suit for eviction. Therefore, even if the amendment of the plaint is allowed, the nature and character of the suit shall not be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed.

HIGH COURTS

• CONTRACT

BOMBAY HIGH COURT

Prakash Ramkrishna Khadse, Vilas Ramkrishna Khadse and Smt. Shakuntala Vs. Manikrao Ramaji Sonwane and Ors. (Decided on 22.09.2009) MANU/MH/1011/2009

Dispute as to execution of a sale deed - Plaintiff files suit for specific performance of contract and for setting aside the sale in favour of Defendants No. 4 to 7 - Trial court set aside the sale deed executed in favour of Defendants No. 4 to 7 and held that Plaintiff was entitled to decree of specific performance - Whether the Plaintiff was willing to perform his part of the contract or merely complaining of breach of contract?

The Plaintiff must prove his readiness and not merely complain of breach. Supreme Court has said that if the Plaintiff wants to simply complain of breach, he should be prepared to have damages and not specific performance. For that the other option is readiness to perform the contract. Simply saying on oath that he is ready does not do. It must be established as a fact that all that is required to be performed under contract before a right to seek performance accrues must be performed. The amount of Rs. 3,00,000 is not paid though alleged to be paid, the amount required to be paid every month is not paid and there is no positive response to the Defendants Notice Ex. 48 calling upon the Plaintiff to have a sale deed. The Plaintiff was not ready and willing to perform his part of the contract. In view of the fact that Plaintiff raised a false plea of payment of Rs. 3,00,000/, the discretion could not be used in any case in favour of the Plaintiff.

• CRIMINAL/NARCOTICS CASE

DELHI HIGH COURT

Harpreet Singh Bahad Vs. DRI (Decided on 23.09.2009) MANU/DE/2453/2009

Scope and ambit of sections 37 and 67 of the NDPS Act - Petitioner files bail application on grounds that the evidence relied upon by the Respondent against him is inadmissible as the said evidence comprises of the statement of co-accused persons recorded under section 67 of the aforesaid Act which cannot be used against him unless it is corroborated by other independent evidence - Whether in light of such circumstances the petitioner is entitled to be released on bail despite the rigors of section 37 of the abovementioned Act?

When an application for bail is under the consideration of this court and the rigours of Section 37 of the NDPS Act are attracted, it is incumbent upon the court to examine as to whether there exist or do not exist reasonable grounds for believing that the petitioner is guilty of the offence charged. This consideration has to be on the basis of the materials available on the date on which the application for bail is considered. Apart from the so-called confessional statement and the admission that one packet was recovered from under the seat on which the petitioner was seated in the said vehicle there is no other evidence available with the prosecution. The so-called confessional statement discloses that the petitioner did not know of the contents of the packet. This being the case, it does appear that the petitioner was not in conscious possession of the said contraband and therefore, there are reasonable grounds for believing that the petitioner is not guilty of the offences for which he has been charged. Insofar as the statement of petitioner under Section 67 of the NDPS Act is concerned, he has already retracted the said statement and in these circumstances, unless and until the statement is corroborated the conviction may or may not take place. Thus, the petitioner is entitled to be released on bail.

• SERVICE

ALLAHABAD HIGH COURT

Smt. Saraswati Devi Vs. Union of India (Decided on 18.09.2009) MANU/UP/0382/2009

Application filed for compassionate appointment for relief - Petitioner subsequently changes stance and seeks appointment for her minor son on his attaining majority - Whether it would be reasonable to provide appointment in the wake of a lapse of time period?

Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution. Here in spite of death of bread earner in the family, petitioner has survived and substantial period of 15 years is over, then there is no necessity to say good bye to normal rule of appointment, and show favour to petitioner.