CPC

March 8, 2019 | Author: eyecandy123 | Category: Lawsuit, Evidence (Law), Pleading, Eviction, Damages
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CIVIL PROCEDURE CASES...

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Jurisdiction;- SEC ;-9,10,20,21,24,etc. ● Civil court have jurisdiction to try suit unless barred by statute. ILR 1993 *1+ KAR 1244 ● Civil suit regarding r egarding acquisition proceedings proceedings is not maintainable & by implication cognizance sec 9 barrs it Hence no injunction can be granted.ILR 1997 [3] SC 2372 ● Jurisdiction of court. AIR 1959 MAD 227. ● Objection to territorial jurisdiction-Consequential jurisdiction -Consequential failure of justice. 1965 [1] MYLJ 669, 1970 [2] MYLJ 317,ILR 1995 [4] KAR 2965, ● H-court H-court or D-court may transfer suit from a court which has no jurisdiction to try tr y it.1971 [1] MYLJ 10, 1972 [1] MYLJ 200. ● Bar of civil court jurisdiction ;; - 1975[1]MYLJ 182, 1974 [2] MYLJ 499, ILR 1978[2] 1978 [2] MYS 1364 ● Plea of inherent i nherent jurisdiction - executing court. 1986 ILR MYS 2631. ● Suit for demarcation of boundary of property is maintainable. AIR 1987 SC2137 ● Conferring the jurisdiction on court by mutual consent not permissible. AIR 1992 SC 1514. ● Erroneous exercise of jurisdiction is different from lack of inherent jurisdiction. jurisdictio n. The former results in erroneous decree the later in a decree in nullity.AIR1993BOM 304. ● While transferring of suits justice according to law is done. AIR 1990 SC 113. ● No case can be transferred to another court unless first court is biased or some r easonable ground exists.1989 SCJ 180. ● A suit on a promissory note lies at the place where it is drawn ,signed, & dated AIR1952 PEP4 ● MC -case-jurisdiction;- If the wife never lived at the Husband House the suit for RCR must be brought in the court of the place where the wife resides. Suit for Dower lies in a court within whose  jurisdiction the marriage marriage & Divorce Divorce took place. AIR AIR 1991 SC1104. AIR 1993 KER 87, 1993 MARRIAGE MARRIAGE L J 210. ● Suit includes appeal under sec 10 -AIR 1954 PUN 113. ● Lok Adalat jurisdiction:-Only jurisdi ction:-Only when both the parties are amenable to compromise or settlement ILR 2001 [3] KAR 4338., ILR 2001[4] KAR 4704. ● Jurisdiction of civil court express Bar under section 68 of KLR ACT ILR 1996 *1+ KAR 715. ● A suit for direction to any authority to act in accordance with law is not maintainable. ILR1998KAR2612. ● Inherent lack of JURISdnJURISdn- lack of competence -lack of jurisdn-under High court's act-ILR2001(2) KAR2030.(FB) Exclusion of jurisdiction, under municipal act ,does not bar civil court from examining if statutory provisions complied or not. ILR 1996 (3) KAR 2516. ● When alternative remedy is available under the provisions of wt & meas act – suit barred- ILR 2001(3)KAR3816. ● CIVIL CASE against KEB for disconnecting electricity without following procedure-ILR 1996 (4) KAR 2916. ● It would not be proper to grant P.I. AGAINST statutory authorities from performing its functions & Duties. ILR 1993 KAR 3398. ● Suit for Declaration of caste, wrongly written in educational records , when he actually belo ngs to

other caste . ILR 1996 (4) KAR 3693. ● Recovery of debts of over 10 lakhs & over is barred by act civil court has no jurisdiction. ILR 1996 (4) KAR 3244. The above act is struck as ultra vires- ILR 2001(2) KAR 1809. ● Maintainability of suit before small cause court challenged in CRP – CRP  –ILR ILR 1997 (2) KAR 1535. ● Civil Rights & Family Court: - House & open space given by her husband long back ago was interfered by son & son-in-law of her husband. Suit for injunction filed by her, -such suits fall squarely under cl (d) of the explanation to section 7 of the family courts act & they can be tried & disposed off by family courts – courts  – transferred. ILR2001(3)KAR4004.DB. ● DeclarationDeclaration- Regrant- when question of regrant is pending , civil courts cannot grant decree declaring title to watan lands-ILR 2002(1)KAR 724. ● JURISDICTION: When there is agreementagreement - & property in other place:- ILR 2002 (1) KAR 717. ● Decree of Divorcee in foreign courtcourt - ILR 2002 (2) KAR 2835.DB. ● Jurisdiction & appeal :: - ILR 1997 (2) KAR 1291. ●

RESJUDICATA;- SECTION;- 11;● Injunction suit not res-judicata res -judicata for a later suit. ILR 1988[3] KAR 2102 DB. ● Subsequent suit canvassing other grounds. ILR 1978 *2+ MYS 1 555 ● Suit dismissed for default under O9 R 2&3*failure to take steps & when neither party appears]Separate suit lies. MYLJ dt 23-3-1972 SNRD it no 108. ● Constructive Resjudicata …… ILR 1997 KAR *3+1865. AIR 1970 SC 1525.ILR 1995 *4+ KAR 3376. AIR 1995 RAJ 94,97,98. ● It is no answer to a plea of resjudicata that a argument which was not advanced in the previous suit .AIR 1977 SC 1680. ● A judgement obtained by fraud or collusion does not operate as RJ. AIR 1982 NOC 233 GAU. AIR 1993 KER 273. ● Principles of RJ does not apply to Income tax proceedings. AIR 1992 SC 377. ● Decision Decision of SC that water disputes tribunal can give interim relief forms part of reference to SC

opinion , decision operates as RJ & cannot be reopened .Cauvery water dispute case;- AIR 1992SC 522. ● If a decision of a court or a Tribunal is without jurisdiction jurisdic tion such a deciscion or finding cannot operates as a resjudicata in subsequent proceedings. AIR 1998 SC 972. ● A Revenue court decision on a question of Title will not bar a suit in the ordinary civil courts , unless otherwise provided by law . A finding of a criminal court also does not bind the civil court. AIR 1978 KAR 213, AIR 1962 SC 147. ● A Previous deciscion does not operate as RJ on the same question when there has been a change of  law subsequent to the deciscion. AIR 1981 NOC 211 [DELHI] . ● The deciscion not based on merits would not be RJ in subsequent suits;- AIR 1966SC 1332 ● When the suit is withdrawn ,without reserving Right to file fresh suit, R J applies to fresh suit. ILR 1995 [2] KAR 2419 [DB]. ● Judgement in rem falls outside the scope sec;11 of cpc. Judgement of court's exercising ,Probate,Matrimonial,Admirality, ,Probate,Matrimonial,Ad mirality, or Insolvency jurisdiction is a judgement in rem ● No question of resjudicata r esjudicata where fraud or collusion present ILR1996*1+KAR165*SC+ ● Issue of Law overlooking statutory provision provision not conclusive & binding even between parties ,being per- incuriam & not Resjudicata ILR1995(4)KAR 2804. ● Abandonment of part of the claim in previous suit - plf in second suit claiming substantially same relief on the genises of cause of action arose earlier - held second suit barred -ILR 1996(2) KAR 1905. ● In earlier suit for INJ –observed – observed that particular tank is private- such observation cannot amount to resjudicata in subsequent suit. ILR 2001 (3) KAR 3562. ● Declaration suit Decreed, then suit for Damages was filed by showing the cause of action as the date of finality of suit- no Resjudicata. ILR 1998 (1) KAR 1050. ● Orders passed on IA & subsequen subsequentt or earlier orders operate as resjudicata in subsequent stage of  the same proceedings ILR 2002 (2) KAR 2675. ● An observation or even a finding that the defendant has not proved his title in a suit schedule property does not operate as resjudicata. ILR 1998 (3) KAR 3005. ●

SECTION 34:● Even though plaint not specifying the grant of interest in a su it for recovery of money plaintiff  entitled to statutory Interest of 6% p.a – p.a  – normal costs unless special costs are awarded.- ILR 1997 (1) KAR 553. ● It is not obligatory to award contract rate of interest in all cases, discretion is vested with court to award lesser rate of interest taking into account the circumstances of the case :- ILR 1997 (2) KAR 1042. ● SECTION 36:-

● Interim order not obeyed – respondent can move court for contempt or file execution  – ILR 1998 (4) KAR 4236. ● SECTION 52:● Executability of decree against legal heirs of deceased permissible against property left by deceased under sec 52, however gratuity being terminable benefit could not be attached even in thje hands of  legal heirs. Section 52 does not contravene section 60. ILR 1997 (1) KAR 645. ●

SECTION 51:● Arrest warrant only by complying sec 51 – ILR 1998 (4) KAR 4167. ● SECTION 54;● The duty of DC is to effect partition & deliver possession 1985*1+ ILR KAR 462. ● Partition effected by collecter civil court have no jurisdiction to meddle 1965[2] MYLJ 768., 1981[2]MYLJ 465.,AIR 1964MYS 169., ● Prevention of Fragmentation Act ILR 1993 KAR 3271., ● AC order can be executed by Tahsildar -no re delegation of power.ILR 1992 KAR 2152., ● ILR 1990 KAR 1265., ● SECTION 60:● PENSION –exempted from attachment. – ILR1997(2)KAR738. ● Tractor & trailer are not Agricultural or husbandry implements to exempt – ILR 1998 (1)KAR 386. ● Bank employee not government servant . ILR1995 *3+ KAR 2214. ● Lathe used in engineering workshop is not a tools of artisan –HC disagrees with AIR 1972 RAJ 62.ILR1998(4)KAR 4264. ●

SECTION;80., NOTICE-

● Even in a claim against public officer govt shall have to be joined as a party after service of notice ILR 1993[2] KAR 401 DB., ILR 1998 (1)KAR S.N.21. ● Notice to government is mandatory even in case for change of date of Birth.,AIR 1947 PC 198., AIR 1960 SC 1309.,AIR 1947 CAL 26&27.,AIR 1938 MAD 583&584., ● For permenant injunction suit sec 80 need not be complied with.,AIR 1960 PAT 530., ● 1982*1+KLC8., ILR 1998 KAR 2378., 1971 MYLJ*25-3-71] SNRD 18., ● Suit against DC as a representative of Govt ,not necessary to make Kar sec ex Brd as party: ILR 1996(1) KAR 1175. ● Karnataka conduct of government litigation rules 1985 – Rule 5(2), Such summons to chief secretary shall have to be received by the Solicitor in the department of law & parliamentary affairs ILR 2001 (4) KAR 4406. DB. ● Served – mere dispatch is not sufficient- ILR 2002 (2) KAR2923. ●

SECTION 91 :-NUISANCE:● ILR 1996 (4) KAR 3356. ● SECTION 92;● Sale of property of religious & charitable endownments by private negotiation should not be permitted by court unless justified by special reasons.AIR1990 SC 444., ● ILR 1992 *4+ KAR 3023., AIR 1991 SC 121., ● Notice to dft prior to grant of permission not necessary AIR 1991 SC 221., ● When it is trust property - Suit for injunction without invoking sec:92- not maintainable-ILR 1993 [2] KAR 1580. ● Suit in representative capacity no necessity to invoke order 1 rule 8. ILR 199 6(1)KAR 549. ●

SECTION 96:-

● Correction of date of birth case, where no prejudice is caused to state, mechanical filing of appeal deprecated:ILR1995(4)KAR3576. ● Overlooking of oral evidence by first appellate court , JDGT liable to set aside for fresh hearing.ILR 1996 (3) KAR 2156. ● O8 R6A & SEC 55 Of Contract Act:- ILR 1997 (2) KAR 1042. ●

SECTION; 100;- SECOND APPEAL;● Substantial question of law -1st appellate court rejecting material evidence on fil msy grounds -High Court can interfere. ILR 1997[3] KAR 2373 [SC]. ILR 1995 [4] KAR 3275.ILR 1996 (3)KAR 2693.ILR1997(4)KAR2632.SC. ● Conclusion about limitation is a finding of fact & not opens for interference in SA. AIR 1998 MP 73. ● The findings of fact arrived by the court below are bind ing in second appeal. AIR 1998 SC 970. ILR1998 (2) KAR 1550. ILD 2003 (5) MP 316 FB. AIR1963 SC 302. AIR 1959 SC 57. ● Interpretation of contract Involves a substantial question of law-can be examined in second appealAIR 1993 DEL187. ● Perverse finding of fact or factual finding based on no evidence second appeal is maintainable-AIR 1993 CAL 144.,AIR1994 ORI 26., ILR 1999[1] KAR 1264., ILR2001[1]KAR 1385[SC]., ● In the absence of substantial question of law no SA; - ILR1996[4]KAR 3590., AIR1990 SC 2212., ● When there is proper appreciation of evidence of facts no interference in second appeal. ILR 200 1 [3] KAR 4295. ● When Law laid down by Higher courts is not considered by lower two courts -HC interferes ILR2001(2)KAR3322. ● INDUCTION of tenant by mortgage in possession is a question of fact ILR 1997 (1) KAR 468. ● Defence against female heir’s Right to partition of dwelling house as pleas not t aken in courts below & also in view of plaintiff claiming Right before coming into force of 1956 act,this plea cannot be raised in second appeal.:-ILR 1997 (1) KAR 40. ● Validity of sale deed not substantial question of law:- ILR 1997(1)KAR668.-> Vendor has no title. ● If the evidence of party containing admissions is ignored, HC can iterfere - ILR 1997 (3)KAR 1993. ● Appreciation of evidence by HC IN SECOND APPEAL is un warranted to reverse the finding of fact recorded by the lower 1st appellate court. ILR 1997 (3) KAR 2183. SC. ● Fact about validity & genuineness of re conveyance deed cannot be interfered in second appeal. ILR 1997 (3) KAR 2181. ● Title by Adverse possession, finding of fact –if it is neither perverse nor illegal binding on HC. ILR1997(2)KAR1110. ●

SECTION 144:● Restitution principles-ILR 1996(1) KAR 872. ● Discretion of court- IL1993 KAR2197 Not Followed – ILR 2002 (2) KAR 1779. ●

SECTION - 148 & 151;● Application for extension of time to vacate premises court cannot grant unless both the parties agree;- ILR 1980[2] MYS 1491. ● Suits cannot be clubbed under section151 CPC .AIR1957 PAT 124. AIR 1960 AP 75. ● Partition suit -Interim maintenance-when claimed from out of the joint family income -1975 (2) KLJ 182. ● When there is no specific provision sec 151 can be invoked .1981(2) KLC150. ● SEC151, O9 R6 , O18 R4&7,:-A party to a suit can maintain an application even at the stage of   judgment, for the purposes of either filing the material pleading or to adduce material evidence for  just & proper decision of the case.ILR 2000 KAR 820, ILR 1993 KAR 161. ● SECTION:151 Not applicable to proceedings before Rent controller. ILR 1995 [4] KAR 3410 ● Sec 151;- JDR cannot maintain an application under sec 151 for setting aside court auction sale ILR2001(1)KAR1552. ● When correct provision of law is not mentioned in IA ,cannot be dismissed. ILR 2001(1) KAR 15 27. ● SEC148&149;-Non filing of court fee ,papers & documents-ILR1996(1)KAR 425. ● Court has not passed orders on LR application – even at the stage of arguments court has inherent powers to correct its mistake- ILR 1997 (2) KAR 979. ●

CAVEAT- SECTION- 148A ● Caveat not applicable to land reforms appellate court. ILR 1986 MYS 2890. ● Caveat can be filed without naming the respondent. ILR 1999 *3+ KAR 2986. ●

SECTION 152;Amendment of Decree[AOD]; ● Lower court decree merges with Appellate court AIR 1980 KER 76. ● No such AOD can be allowed when rights of third party get involved & are likely to be adversely affected 1981 ALLLJ NOC 122. ● Error can be corrected by high court under S 151&152CPC even though appeal from Decree may

have been admitted in the supreme court before the date of correction. AIR 1962 SC 633. ILR 200[4] KAR 3459. ● 1967*2+ MYLJ 317, AIR 1974 SC 1880, ● Persons not parties to the amendment of decree are not bound by thereby – amendment takes effect prospectively. ILR 1997 (2) KAR 1561. ●

GENERAL ;● Parties are entitled to copy of documents on which suit is relied upon though not marked ILR 1992 KAR 2700. ● It was Advocates essential obligation to prepare pleadings according to law & also of the court office to scrutinize them for avoiding serious difficulties.ILR 1997[1]KAR 553. ● Plf has to succeed on his own strength of the case & cannot relay on the weakness of the case of  defendant AIR 1954 SC 526, AIR 1979 CAL 50. ● Land Revenue patta is not a Title Deed. 1966 *1+ KLJ 772. ● Suit to evict tresspassers one of the co owners can file . 1963 MYLJ page31. ● Document in court lost- Reconstruction & admission in evidence-stamp act sec;-35 1963[2]MYLJ 141. ● Court can consider subsequent events if same has material bearing on relief. A IR 1992 SC 700. ● Recalling of order & Re hearing ; Aspect of finality to judgements & orders on merits to be borne in mind. 1995[2] ILR , KAR 970. ILR 2001[1] KAR 1465,[DB]. ● Even though recitals of saledeed indicate that it is sale deed. Court should en devour to find out from the facts & circumstances of the case as to wether it is a sale deed. ILR 2001 [3] KAR 4295. ● Quasi Judicial authorities cannot usurp the rights of civil courts .AIR 1968 SC 620. AIR 1987 KANT 79. ● Quasi Judicial authorities cannot DECIDE civil rights; ILR 1998 (3) KAR 2232. ● Possessory rights:-allotment order &possession certificate- no titl e documents, Admissions in evidence of defendant that plf has been allotted that land-dfts has not setup title to suit schedule property -possessory rights recognized ILR 2001 ( 2)KAR2027.SC. ● Unregistered sale deed for rs 25/- in 1955, suit for decal-inj:-ILR2001(2)KAR 1917. ● WRIT- dismissed- non prosecution-for not producing correct address of RES, ILR 2001(2)KAR 2131. ● Claims tribunal a civil court- ILR2000 (4)KAR S.N.192. ● Declaratory suit not filed with in limitation period - creates valid title to the opposite party , amendment constituting altogether a new case cannot be done - ILR 2001 (2) KAR 3060. ● Allegation of fraud and misrepresentation in civil litigation: level of proof extremely high rated on par with criminal trialILR 1995 (4) KAR 3389. ● Civil Court not to grant declaration that civil servant must have been promoted-ILR 1986 (1) KAR 37. ● Civil Courts cannot interfere in results of domestic enquiry ILR 1996 (2) KAR 1905. ● When there is a Duty cast on the party by Law, to follow certain procedure & where there is a breach, merely because corrective action is taken at subsequent time, initial breach cannot be totally

ignored ILR 2001(3) KAR 3448 DB. ● CIVIL COURTS awarding DAMAGES to plaintiff on the ground that he has spent some amount for litigation not proper ILR 2001 (3) KAR 3816. ● Filing of fraudulent cases to avoid court orders, the abuse of process of law by suchsuch methods deprecated ILR 2001 (3) KAR 3746 SC. ● Process of criminal court cannot be misused to settle purely civil Dispute : - ILR 1997 (3) KAR 2145. ● IRREGULAR AFFIDAVIT –ILR 1997 (3) KAR 1856. ● Voluminous & irrelevant materials produced by both the part ies- Bad- ILR 1997 (1) KAR 111. ● Natural Justice principles in all matters affecting citizens Rights/civil consequences. ILR1997(1)KAR833,973,758. ● A Precedent of 15 years old required to be reconsidered on changing economic conditions & other factors. ILR 1996 (4) KAR 3032. TUMKUR CASE. ● Suit for damages for Defamation: Damages awarded:- ILR 2001 (3) KAR 4142. ● Evidence produced without pleadings cannot be considered. ILR 1998(1) KAR 6 72. ● Impleading judicial officers as respondents not good – ILR 1998 (1) KAR 530.SC. ● When eviction is obtained by court by filing wrong address of tenant i n court - ILR 2002 (1) KAR 847. ● Minor Discrepancies in the case of the parties cannot be blown out of proportion. – ILR 1998 (2) KAR 1957. ● Parties knowing fully well the case of the other had led all evidence- non raising of points needs no interference.- ILR 1998 (2) KAR 1403. ● Suit for direction to any authority to act in accordance with law is not maintainable - ILR 1998 (3) KAR 2612. ● When grant of land is proved by production of saguvalli chit, in a suit for possession of encroached portion, it is wrong to go to the extent of land which was in possession of the Plf in unauthorized coltivation. ILR 1998 (3) KAR 2262. ● ELECTION PETITION- ORDERS Passed by Munsiff- WRIT – Maintainable- ILR 1998 (3) KAR 2276. ● Long pendency of suits in courts does not create any rights in favour of the defendants. – ILR 1998(4) KAR 3580. ● Partition suit – plea of limitation taken –defendant says that suit was filed when finally plf denied to give share- unless defendant proves ouster limitation contention cannot be accepted. ILR 19 98 (4) KAR 3161. ● Civil Procedure Code - Suit for declaration - Mode of proof - Whether High Court erred in holding that registered certified copy of sale deed was admissible in evidence as document produced was more than 30 years old - When plaintiff submitted a certified copy of sale deed in evidence and when sale deed taken on record and marked as an exhibit at trial stage, appellant did not raise any objection - Held, it was not open to appellant to object to mode of proof before lower appellate Court... Dayamathi Bai v. K.M. Shaffi (SUPREME COURT OF INDIA) D.D : 4/8/2004 ● JUDICIAL DISCIPLINE Application for refund rejected by the Assessing Authority - Appeal filed by the appellant for refund allowed by the Collector of Central Excise - Despite several representations amount not refunded Held, as no further appeal was filed against the order of the appellate authority, the order has

attained finality - It was obligatory on the part of the concerned authorities to comply with the order passed by the Collector in view of the doctrine of judicial discipline Triveni Chemicals Limited v. Union of India and Another (SUPREME COURT OF INDIA) (D.D : 15/12/2006) ● OFFICIALS SHOULD ACT ACCORDING TO BEST JUDGEMET Senior bureaucrats must act according to their best judgment until he is acting under the direction of  his 'official' superior.... Tarlochan Development Sharma v. State of Punjab (SUPREME COURT OF INDIA) D.D : 25/6/2001

RULES OF PRACTICE;● Rule 56 CRP- Appendix -C- Finger print & hand writing analysis. ● Rule 138 CRP-The sale of Immoveable property shall ordinarily take place at the spot, subject to the condition that final bid shall be offered before the p.o. at the court house. ● Rule 148 CRP - No sale shall be held on a holiday. ● Rule 99& 100 CRP- Costs & Special Costs. ● ORDER 1 & RULES :● Not applicable to representative suits ILR1980 KAR 1032., ILR 1987*2+ KAR 1242., ● Does not applicable to the case of defective description of parties AIR 1961 SC 325., ● Inapplicable to the execution proceedings ILR1995*2+KAR 1815., ● R/W O22 R 2, LR's steps into the shoes of their predecessors.ILR1999 KAR 117*july+ ● Necessary parties are those without whom no effective orders could be passed AIR 1969 PUNJ., AIR 1963 RAJ 198. ● Proper parties are those whose presence is necessary to completely & effectively adjudicate upon & settle all questions in suit .AIR1963MAD 480,AIR 1967RAJ 131&252 ,AIR 1953 CAL 15, AIR 1957MAD 699,AIR 1958 SC 886, AIR 1970 RAJ 167 ,AIR 1970 TRI 80, ● Proper parties are added to avoid needless Multiplicity of suit & to protect his interest. AIR 1956 HYD 192. ● Appellate court can remand to add necessary party AIR1940ALL399, AIR1949LAH248, ● Test to add parties;-[1] adjudication of real controversy [2] to settle all disputes [3] Parties have substantative and direct interest.[4] whether only to vindicate certain other grievances [5]considerable prejudice to other side AIR1968 MAD 287& 142 , 1967[2]MYLJ365., ● No suit against dead person ,no LR application or impleading application lie. AIR 1946 SIND 20 , R/W O 22 R4&9, ● KAR HC Amendment- O 1 R10[6]-Court may on application transfer the position of plf to dft & viceversa. ● One co owner filing an eviction suit against tenant & denying the rights of other co owners therein

Suit not competent without impleading other co- owners AIR 1994 KER 164. ● Issue of non joinder of necessary parties cannot be raised for first time in ap peal AIR 1994 AP 72. ● Non interested party need not be impleaded in the suit , even though such party was a necessary party AIR 1994 GAU 18., ● Orders passed does not amount to case decided hence not revisable by High Court ILR2000KAR 50SN., ● O1 r8:-Requires averments in plaint & affidavit to fully satisfy t he requisites. ILR 1997[2]KAR 1383 ● O1 r8:-Person who files a suit in representative capacity is required to obtain the permission of of  the court under o1r8, -Granting of permission during the pendency of the suit does not change the nature of the suit.ILR 2000 KAR 1511. ● O1 R10:- In ordinate delay in seeking addition of party - although an addition is possible at any stage- inordinate delay dissuade the court from directing addition ILR 2 001 [1] KAR 312.[DB]. ● O1 R10;- To a suit for specific performance, the defendant sought permission to implead KSFC as the Plf was to discharge the outstanding debt to KSFC ,IA dismissed-ILR 2000 (4) KAR S.N.219. ● Condition precedent to strike out or implead party.ILR1996(1) KAR97. ● O 1 R 3 & 9:- Respondents Head office is not necessarily party to suit – entitled to be decreed against regional office-ILR 1997 (1) KAR 553. ● O1 R8 R/W O7 R4 :-Prior notice is not required before granting permission to sue in representative capacity where public interest is involved. – ILR 1998 (1) KAR 616. ● O1 R8 :- Notice to defendants before withdrawing suit-ILR2002 (2) KAR 2172. ●

ORDER 2 & RULES ;● Objections as to misjoinder ;Waiver of objection if it is not taken before issues are settled . ● Leave of the court should be prayed ,at the time of filing of the suit ,for any other relief that may arise or leftout.AIR 1965 SC 295, AIR 1971 CAL 221, AIR 1961 SC 725, AIR 1993 BOM 67, ● O 2 r 2:- sub rule-3:-Scope & conditions for applicability and its applicability to continous or recurring causes of action:-ILR 1997 [4] KAR 3 288 [SC]. ● O2 R3:- Sevaral causes of action against same defendants jointly in same suit. ILR 1995 [4] KAR 2957. ● O2 R2:- Chits funds Act:- Leave of court:-ILR 2001(1) KAR 1524. ● RULES THAT BAR FRESH SUIT IN RESPECT OF SAME CAUSE OF ACTION; O 2 R 2 ;- Omission to sue in respect of claim. O 9 R 2 ;- Decree against plf by default bars fresh suit. O 22 R 9 ;- Abatement of suit or its dismissal under it. O 23 R 1 ;- Withdrawal of suit or abandonment of part of claim without leave of court bars fresh suit. O2 R3:- Sevaral causes of action against same defendants jointly in same suit. ILR 1995 [4] KAR 2957. ●

ORDER 3 & RULES;● Counsel for defendant being permitted to retire dft not entitled to court notice. ● Court has power under O 1 R 10A, to request any pleader to address in any suit of the party who is not represented by any pleader. ● R/W Evidence act sec 118:-It is not necessary that party should examine first-it can be t hrough pa holder -it is valid evidence of plaintiff ILR 2001 (2) KAR 2628. ILR 2001 ( 4) KAR 4743.But not when GPA is not produced – ILR 2002 (1) KAR 1449. ● Code of Civil Procedure, O. 2 r. 2 - Appellant, borrowed a sum of Rs.1, 10, 000/- from the plaintiff  Bank for the purchase of a bus - Secured repayment of that loan by hypothecating the bus and further by equitably mortgaging two items of immovable properties - Suit for enforcement of the equitable mortgage - Why second suit would not be hit by Order 2 Rule 2, C.P.C.?; In view of the finding arrived at vide para 19 of the judgment (Annexure P-2), why defendant No.1 should not have been held to have been discharged from the liability? - Held, suit to enforce the equitable mortgage is hit by O. 2 r. 2 in view of the earlier suit for recovery of the mid term loan, especially in the context of O. 34 r. 14 of  the Code - The two causes of action are different, though they might have been parts of the same transaction - There is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it - High Court was correct in granting the Bank a decree in the suit - Appeal dismissed.... S. Nazeer Ahmed v. State Bank of Mysore and Others (SUPREME COURT OF INDIA) D.D 12/1/2007

ORDER 5 & RULES :● Suit summons has to be served in person, unless an agent empowered to accept the serviceis there. Service on the office clerk of the defendant is not proper service. ILR 2001 (4) KAR 4406.DB. ● ORDER 6 & RULES ,;● Pleadings to state material facts & not evidence AIR 1937 LAH 795, AIR1959SC, AIR 1968SC 1083. ● Parties cannot be allowed to approbate & reprobate in their pleadings-AIR1993PH172 ● Pleadings are foundations of case -cannot up new and different case-AIR1987SC2179 ● Easementary right -special right-should be pleaded clearly & precisely- AIR1993KER91, ILR 1996[3]KAR 2826. ● Pleadings to be construed liberally ILR1996*4+KAR 3595. ● If IA is allowed & if the plf fails to comply the s uit has to be dismissed. AIR1975AP 8,AIR1940NAG261, ● Where no legal right accrued & no prejudice to other side amendment allowedILR 1995 *2+ KAR

1808.-Easementary Right of way not after prescriptive right lost. ● Guiding principles of amendment-AIR1957SC 363, AIR 1958 J&K62, ● Suit on pronote -amendment to delete same to make it one under original cause of action held not permissible-1982[1]ILR ,MYS 730., ● Suit for specific performance of contract for sale-plaintiff wants to amend plaint by introducing his averments to readiness & willingness to perform his part of contract .It does not amount to change in cause of action hence allowed,AIR1998SC 1230., ● Once amendment of pleading is allowed party itself must incorporate the amendment it is not ministerial act of the court AIR1993 BOM 175., ● Plf through amendment tries to gain relief he had lost through efflux of time amendment cannot be allowed-AIR1993 AP 47., ● Amendment of W/S not displacing plf case allowed.AIR 1994HP 33.AIR 1993DEHL1,AIR 1993 MP 248, AIR 1993 GAU 50&42,. ● Introducing new case not allowed- ILR1996[3]KAR2462. ● Amended application, which wanted to introduce material particulars & not material facts, is allowed ILR 2001 [4] KAR 4317. ● O6 r17 : & O8 r9:-New & inconsistent pleas cannot be raised under o8r9,such pleas can be raised under o6 r17.ILR 2001 [4] KAR 4580. ● O6 r5:- Party is entitled to better particulars in a proceeding ,if they are necessary to take a particular defense at the time of filing w/s but the party cannot seek particulars which are all matters of evidence:-ILR 2001[3] KAR 4350. ● O6 r17:- Doctrine of finality which attracts itself itself to a different stages of legal proceeding - No Amendment allowed - Because litigation gets dilated & goes on interminably:-ILR 2000 KAR 571. ● O6 R17:- Easementary right of way ;amendment to add relief of declaration - Not in absence of  necessary parties & not after prescriptive lost. ILR 1995 [2] KAR 1413. ● Specific relief act sec34&limitation act;- no permission to amend plaint after suit for relief  barred by limitation during pendency of proceedings in appeal. ILR1996[1]KAR1067[SC]. ● Delay of five years, matter known from 16 years -amendment not allowed-ILR 2000 (4) KAR 4550. ● Courts should be liberal in allowing amendments-, which do not change the cause of action, facts, & pleadings may succeed. ILR 1997 (1) KAR 543. ● Amendemnt of plaint for including phut karab – allowed in revision by HC with costsILR1998(3)KAR2249. ●

ORDER 7 & RULES ;● Courts can grant relief’s not prayed for in the suit. ILR 1999 [1] KAR 222. AIR 1994 AP 164. AIR 1994 AP 72. ● O7 r11: plaint can be rejected even after framing of issues: ILR1998 *4+ KAR 3033*SC+. ● O7 r7: Relief to be in the context of plaint allegations & cause of action, not larger than claimed in the suit & not barred by time.ILR 1996[1] KAR 941.

● O7 r11: Non payment of deficit court fee even though time to make good the deficit was granted more than once -plaint rejected -discretion vested in court . ILR 2001[1]KAR 868 [DB]. ● O7 r10A: Procedure involving return of plaint for lack of jurisdiction - notice to parties - appeal against return - ILR1996(2)1893. ● Absence of willingness to perform his part of contract in plaint. AIR 1994 SC 1200. AIR 1978 KANT 98. ● Amendment made to plaint before presenting it to senior court when it is returned under O7 R10ANO objection can be maintained for that. ILR1996 (4) KAR 3628. ● O7 R14 (1): - Suing with a different document, rather t han document which was relied upon by plaintiff. ILR 1996(4) KAR 3226. ● Suit for ejectment is not properly framed- ILR 1997 (4) KAR 3288. SC. ● Petition to Declare marriage as void – ILR 1997 (2) KAR 964. ● Rejection of plaint on the grounds of Limitation. ILR 1997 (2) KAR 1127. ● Eviction cause is a reoccurring one – ILR 1997 (2) KAR 1119. ●

ORDER 8 & RULES:● O 8 r 9 : Non filing of a rejoinder does not amount to admission in W/S . ILR1999 *JULY+ 2539. ● O 8 r 6 : Counter claim , cross suit, & set off, AIR 1964 SC 11. ● O 8 r 5 : Pleading of ignorance of plaint averments amounts to admission of the averments- unless contrary is proved by implication AIR 1994 RAJ 133. ● O 8 r 1 : Deliberate delay in filing of the w/s in a suit suit suit for recovery of huge amount by bank Held court competent to strike off the defence AIR1994PH10. ● O 8 r : Right of addl w/s against amended plaint. AIR1961HP46, AIR1978GUJ94. AIR1949MAD622, AIR1953MAD492&504, AIR1955AP8, 1973[1]MYLJSN2,. ● O 8 r 6A :-Written statement filed - Issues framed - It would not deprive the defendant of the right to file counter claim.ILR 1999 KAR 4610. ● O8 R6A:- Defendant can file a counter claim any time before the commencement of the recording of  evidence.ILR 1999 [1] KAR 898 [DB]. ILR 2002 (1) KAR 265. ● Liability not specifically disputed claim liable to be treated uncontroverted ILR1996[1]KAR435. ● Written statement was not filed till 1999 when the suit was filed in 1996. Plaintiff filed an application under O8 R10 Supreme Court , by appeal , allowed the application ILR2001 KAR 12[SC] ● O8 R6A;- Counter claim can be filed by party where evidence is not completely closed by the parties & before the matter is reserved for the judgement.ILR2001KAR179. case of ILR1999 KAR 898[DB] is interpreted & five Supreme Court cases referred. ● If W/S is not fil ed , it is neither necessary nor proper appropriate to direct the plf to adduce evidence in support of the facts pleaded by him. The court has to pronounce judgment and decree the

suit. When there is no inconsistency in the facts pleaded by him. C ourt has to pronounce judgment on relevant facts :- ILR2001(1) KAR546 DB. When the suit is not barred by limitation, when defendant does not appear-Shall Decree- ILR 1998 (3) KAR 2653. ● Counter claim:- In a suit for recovery of money ,defendant claimed thathe incurred a loss of Rs 12000/- per mensum due to the intentional delay in releasing the loan amount & hence the suit be dismissed. It is well settled law that in such a cases defendants have to make counter claim by paying court fee, without this trial court should not go into such issuebesides under sec 55 of contract act it is clear that “ when t he promisee cannot claim compensation for delayed performance of the contract when the promisee has accepted performance, unless he gives notice to the promisor of his intention to claim damages.- ILR 1997 (2) KAR 1042.DB. ● Admissions in written statement ignored by lower courts - ILR 1998 (1) KAR 916. ● W/S not filed – it does not deprive defendant to cross examine –ILR 2002 (1) KAR 260. ● W/S not filed – cross examined by defendant –it amounts to contest – he can file appeal- ILR 2002(1) KAR 615. ●

ORDER 9 & RULES:● Consequences of non appearance of parties 1 983*1+KLJ236, ILR1986*1+KAR166. ● Tenant evicted meanwhile 1989*2+kar1078. ● Whether suit summons is ser ved or not is a question of fact ILR1997[3]KAR2631. ● Exparte decree set aside,-sufficient cause-1986[1]ILRMYS166,ILR1999[1]KAR932. ● Limitation act Art163*new Art137+: AIR1994NOC148,AIR1958HP9, ● Suit is posted for evidence -Adjourned for want of time on adjourned date suit is dismissed for default,order is not under o17r3 petition lies.ILR1982[1]MYS 439. ● Application to setaside the exparte decree on the ground of nonservice of summons - Held the applicant must show the source of the knowledge about passing of the expartee decree .AIR 1994 PAT 103. ● Restoration application on the ground t hat non-appearance of counsel due to strike call not allowed on this ground. AIR1993P&H 134. ● Postman testifying services of summons by refusal, no illegality in passin g exparte decree AIR 1994 RAJ 9. ● An exparte divorce decree was obtained against wife & the husband expired there after, aggrieved wife can file application for setting aside exparte decree even though husband might have expired prior to moving of such application under o9r13.In such proceedings legal heirs of deceased husband can be brought on record as respondents. AIR1997 SC35. ● O 9 R 4 : 30 days limitation ILR 1995*4+ KAR 3122. ● O9 R8&9 :-Claim petition dismissed for default in 1984 were restored in 1993 after condoning delay on the grounds of illetaracy.ILR 2000 [3] KAR S.N.122. ● O9 R 13:- Trial court set aside the exparte decree relying on the opinion of handwriting expert &

holding that process server has forged the signature of the defendants. ILR 2001(1) KAR 1391.(SC). ● Restoration application can be filed even in cases where second petition could be filed – ILR 1997 (2) KAR 911. ● Non appearance of contesting defendant at subsequent stages & failure to cross examine is a exparte Decree. ILR 1997 (3) KAR 1909. ● O9 R 13:- Name of ADV not shown in cause list is sufficient reason for setting aside exparte decreeILR 2002 (2) KAR 1828 (SC). ● O9 R9 & O33 R1:- Petition dismissed under O33 R1 amounted to dismissal of plaint hence restoration petition maintainable ILR 1997 (2) KAR 911. ●

ORDER 11 & RULES:● PRODUCTION OF DOCUMENTS- stage of disclosure - ILR 1996 (2) KAR 1649 (DB). ● ORDER12 RULES:● O12 R6:- Opportunity has to be given to explain admissions,inference as to admission can be drawn on the pleadings or in the application ,ILR 2001(2) KAR 1706.(SC). ● Trial court judgment under O 12 R 6 amounts to Decree – Revision did not lie – ILR 1996 (4) KAR 3091. ● ORDER 14 & RULES:● Relationship-& jurisdictional fact -whether to be tried as prly issue-1981,2mylj395. ● Unless pleaded by party ,cannot be decided by courts as a preliminary issue AIR1993 ALL2. ● Non framing of an important issue held not fatal both parties were aware of the issue & led evidence -AIR 1994GAU64. ● Party permitting the case to be decided without raising a specific plea can be said to be waived the plea. AIR 1993 KAR 257. ILR 1992 KAR 2224. ● Issues involving mixed questions of law & fact c annot be tried as preliminary issues -question as to valuation involves mixed question of fact & law not pure issue of law. ILR 1995 [4] KAR 3420. ● No Revision lies as against the framing or non framing of issues ILR 2 000 (4) KAR S.N.232. ● Framing of additional issues & remanded to t rial court by first appellate court,-ILR 1996 (4) KAR 3206. ● Sale Deed held invalid without there being any issue- ILR 1998 (1) KAR 719. ● It is mandatory to decide all issues though the decision may depend on one issue alone. ILR 1998 (2) KAR 1412. ●

ORDER 15 & RULES:● Suit for injunction- alleging encroachment & putting up construction – defendant claim is that he is not encroaching & putting any construction. The defence put up by defendant does not amount to admission. Suit has to be dismissed for want of cause of action- ILR 2001 (4) KAR 4386. SC. ● ORDER 16 & RULES:● One party in a suit citing other party as his witness,when 1965*2+MYLJ788, 1974*1+KLJ70, AIR 1938 PC. ● Warrant not to be issued unless evidence of witness is material 1977*1+MYLJ370. 1970*2+MYLJ348. ● Refusal to allow party to lead further evidence AIR 1958 J&K27. ● ORDER 17& RULES:● In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment if any granted would certainly be for reasonable grounds, that aspect need not be examined once again if on the date of adjournment sought the party concerned has a reasonable grounds ,the mere fact that in past adjournments were taken is of no effect. If ADJ is sought on filmsy grounds the same would be rejected. ILR2001(1) KAR 1387SC. ● Seeking ADJ on valid grounds -Denial of opportunity to present case:-ILR 2000 (4)KAR 34 83(DB). ● ORDER 18 & RULES:● Hearing of the suit & examination of witness ,1974[1]KLJ249,ILR1988[3]KAR1840. ● Plaintiff 's failure to produce hand writing expert at the time of rebuttal evidence , cannot be allowed to produce at later stage AIR 1993P&H 106. ● Fresh factual evidence - Hearing - If fresh factual evidence is brought in & it is likely to influence the decision , a fresh hearing should be given ILR1999[3]KAR3380. ● Producing documents at late stage &recall of witness is permissible. ILR 1997 (3) KAR 1917. ● O18 R17 & O6 R17 :- PARTITION SUIT – TWO IA’S allowed – ILR 2002 (2) KAR 2280. (SC). ● ORDER 19 & RULES:-

● Affidavit to prove substantative right -noILR 1993 KAR 1361. ● Affidavit are not included in definition of evidence Held plf cannot be allowed to fill up lacuna belated by here AIR 1988 SC 1381. ● Defective affidavits entails rejection:- ILR 1998 (1) KAR 730.DB. ● Affidavits in evidence before tribunals- permissible. – ILR 1997 (2) KAR 1007.

ORDER 20 & RULES:● Where a suit proceeds exparte or opposite party leads no evidence in rebuttal plaintiff will not be entitled to a decree unless he proves his case by legal evidence. AIR1993MP194 ● O20 R18,:-Once final decree was drawn in a partition suit application for enquiry into profits derived by the plaintiff cannot be entertained as there is no such direction in the final decree ILR 2000 KAR 1026 ● O20 R18:- After passing of preliminary decree & before passing of final decree ,death of some of the parties -Share of the parties enlarged, no bar for passing second preliminary decree: ILR 1996 (1) KAR 963. ●

ORDER 21 & RULES:● O21 R97:-Resistance or obstruction to possession of immoveable property DHR may make an application against resistance AIR 1998 SC 1754. ● O21 R97:- A third party in possession of a property claiming independent right as a tenant not party to a decree for possession of immoveable property under execution could resist such decree by seeking adjudication of his objection under o21r97 AIR1998SC1827. ● O21 R97:- 1975[1]MYLJ374, 1970[1] MYLJ419,1971MYLJSNRD380, ● O21 R85:- Deposit of full purchase money with in 15 days-no power to extend time

ILR1994[3]KAR1933 ● O21 R90:- Limitation Act Art 63,127- Applic- -ation for setting aside of sale in execution proceedings30-days. Mere irregularity in attachments does not vitiate the sale- AIR 1994 SC 1583. ILR 1996 (4) KAR 3193. ● O21 R90:-Conduct of auction sale at different place that publicized in auction notice r esulting in fetching inadequate price ,sale held, vitiated.AIR 1993 P&H 207. ● O21 R90:-Auction sale held a nullity if the proclamation of sale was not widely publicized in terms of  the provisions of sec 67[2] and the property auction fetched only 1/3rd of its value as a consequence thereof .AIR 1993 KAR 279, 1993[1] KLJ 519. ● O21 R58:-Investigation of claims ILR1995[2]KAR 1810, ● O21 R58:-Attachment of gratuity and pension not permissible ILR1997[1]KAR 645, ILR 1997[2]KAR738. ● O21 R54:- ILR1999[JULY]119. ● O21 R57:-Attachment before judgment - execution- Dismissal for default - effect - attachment comes to an end if the execution petition is dismissed in default -attachment in execution of the decree shall not supersede the provisions of O 38 R 11,-property attached before judgement not to be reattached in execution of decree 1969[2] MYLJ 465. AIR 1994 NOC 168 [MAD]. ● O21 R58:-Claim petition can be filed before confirmation of the sale 1958MYLJ158 AIR 1958 MYS 140, ILR 1957 MYS 351. ● O21 R :- Execution of decree to be executed on principal debtor first AIR 1987 SC 1078. ● O21 R :- Orders not appealable -ILR 1991 [2]KAR 1213,ILR 1994[1]KAR 145, ● O21 R11:-Production of copy of decree is not obligatory if the execution is taken i n the same court which passed the decree MYLJ 23-6-1966. ● O21 R :-Before staying execution court should require strong prima-facie case in favour of  adjustment of decree. AIR 1993 MP 13[DB]. ● O21 R :-New plea cannot be raised for the first time in execution proceedings. AIR1993 ORI 257 . ● O21 R :-Execution of decree ought not to be refused unless decree itself is a nullity ● O21 R :-Death of decree holder during pendency of the execution proceedings- His legal representatives can continue the proceedings after obtaining the succession certificate.AIR 1993 KAR 321,ILR 2000 KAR 4411 [DB],ILR1992KAR2807, ● O21 R :- Auction sale set aside,AIR 1994 SC 1292, ● O21 R :-In auction sale this is obligatory on the court that only such portion of property as would satisfy decree is sold & not the entire property AIR1990SC119 1989[3] SCC 409, ● O21 R72:- Mere irregularity does not vitiate it , appellant to show that substantial injury has been caused to him as a result of o21 r72 having passed without notice AIR 1991 SC 770. ● O21 R :-Defective execution application , defect can be cured wiyh the permission of the court No cure sumotto by court AIR1994SC1286, AIR1994BOM 217. ● O21 R :- Whe the decretal amount is deposited by the judgement debtor in the court then the court has jurisdiction to decide the rateable distribution AIR1994AP53. ● O21 R :- Money decree passed against company and its managing director, the decree is not passed against managing director in his individual capacity -He cannot be sent to jail in enforcing of the decree. AIR 1993P&H 215.

● O21 R :-Immunity from attachment there under with regards to residential house -held not available to debtor -unless he establishes connection between the agricultural operations carried on by him & the house sought to be attached U/SEC 60 ,1963[2]MY LJ141. ● O21 R83*3+:-Sale in enforcement of mortgage ILR1995[4]2963, ILR1996[2]2466 ● O21 R39*1+ :-No arrest warrant can be issued before the decree holder pays into the c ourt subsistence allowance determined by the court. ILR1997[4]KAR3238. ● Starting point for limitation is Date of Decree & not date on which decree is actually drawn & signed AIR 1999 SC 342. ● O21 R21&22:-Declaratory decree which only declares the rights of the DHR qua JDR & does not in terms direct JDR to do or to refrain from doing any particular act is not an executable decree DHR shall have to file a separate suit. ILR 1999 KAR 3896. ● O21 R90 & O43 R1[J].:-Against orders under o21 r90 Revision does not lie -only appeal lies. ILR 2002 (2) KAR 2374. ● O21 R58 &TP ACT sec39:-Person who is bound by law to maintain his wife cannot avoid the liability by transferring his property because the liability to maintain goes along with the property & the transferee becomes liable ILR 1999[2] KAR SN.112. ● O21 R101 & sec 47:- Sons of deceased tenant not residing with him on the date of death not tenants. ILR 1995 [3]KAR 2460 ● O21 R35:- Once the DHR is put in possession of the property as provided under R35 the DHR cannot maintain second execution petition alleging dispossession by JDR subsequentely.ILR2001(1)KAR1684. ILR 2000(4)KAR 1684. ● O21 R90:-Auction sale -setting aside-fraud &material irregularity -certificate of sale-right to possession-Resjudicata applies to applications under section 151 C PC for setting aside court auction sale. ILR 2001 (1) KAR 1552. ● O21 R64 & 72(3):-Applicants claimed right & title to property as ancestral property, executing court without deciding the question, whether it is ancestral or not, directed to sale it by auction,- Sale declared null & void ,EX- court directed to restore back possession back to JDR- ILR 2001 (2) KAR 2499. ● O21 R41,58,:-& TP Act Sec 41:- executing court cannot sit upon judgment as to whether charge created in the decree is correct or not particularly when the decree has become final,(JDR wherein sold the property prior to the date of decree ILR 2000(4)KAR3613. ● JDR'S Contention that decree is not executable in view of provisions of IT Act that form 37-I to be filed by seller & buyer in the transaction of above 10 lakhs. ILR 2000 (4)K AR 3641. ● O21 R1-3;- Court cannot recognize any payment made outside court unless certified-ILR 1995(4)KAR3461,2959. ● MINOR irregularity in execution proceedings – no substantial injustice & not liable to set aside. ILR 1996(4) KAR 2906. ● OBJECTIONS as to sale of all properties when one property fetches decree amount :- can be raised by JDR. ILR 1996 (4) KAR 3193 & 3560. ● O21 R84 –ILR 1997 (3) KAR 1940. ● Heavy costs to be awrded when applications filed to delay proceedings – ILR 2001 (4) KAR 4784. ● SEC 146 & O21 R16:- Transferee of property in respect of which Decree for possession is passed can file execution petition. ILR 1998 (1) KAR 907.

● O21 R16:- Transferee of property in respect of which decree for possession is passed can file execution petition. ILR 1998 (1) KAR 907. ● Decree for possession- obstruction by person claiming title to the property by way of objectionexecutant court can consider all the questions raised by objector and can pass orders which is treated as decree.ILR2002(1)KAR1300SC. ● Auction sales in two courts – ILR 2002 (1) KAR 1273. ● Auction purchaser is proper party in execution proceedings after sale date- ILR 2002 (2) KAR 2689. ● Partition suit – sharers in possession – cannot defend their possession- on the basis of preliminary decree as there is no final decree passed & partition of the property has not taken place by metes & bounds ILR 2002(2) KAR 2749.SC. ● Purchaser of property prior to the date of decree, and who was not party to that suit –can object under section 151 of CPC. – ILR 2002 (2) KAR 2555. ● Withdrawing Execution Petition by reserving right to file fresh execution second time maintainable  – ILR 2002 (2) KAR 2699. ● Execution petition after 22 years – ILR 2002 (2) KAR 2699. ● Owner of the property executed an agreement to sell to plaintiff – later sold to tenant in occupation of building – suit for specific performance against both decreed- In execution tenant objected to give actual possession- & claimed compensation for expenditure on repairs. Held  – tenancy rights of JDR merged with ownership rights after he purchased. Apart from constructive possession, actual possession is delivered, directed to execute conveyance deed, amount spent is held as “without the consent of owner”. ILR 2002 (2) KAR 2989. ● INJ to restrain executing eviction order erroneous. ILR 1997 (2) KAR 800. ● Bank ( plaintiff ) can participate in auction bid of agricultural land , by permission of court, i n view of  exemption under section 81 of land reforms act. ILR 1998 (3) KAR 3028. ● Code of Civil Procedure, 1908 - O. 21 r. 97 - Specific Relief Act, 1963 - s. 19(b) - Whether a purchaser of a vacant land under registered sale deed and claiming to be in possession of the land can maintain an application under O.21 r. 97, complaining of his alleged dispossession in execution of the decree of  specific performance of contract of sale obtained ex parte by the decree holder against the original owner of the suit property - Held, the provisions of O. 21 rr. 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits - Further held, the executing court was well within l aw in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the Objectors under O. 21 r. 99, and decided the other issues on merits of their claims arising between the decree holder and the objectors.... Ashan Devi and Another v. Phulwasi Devi and Others (SUPREME COURT OF INDIA) D.D : 19/11/2003 ● RESISTANCE TO EXECUTION OF DECREE When a decree-holder complains of resistance to the execution of a decree for delivery of possession of immovable property, it is incumbent on the exec ution court to adjudicate upon it while

determining only such question, which is relevant to the adjudication of the complaint and has arisen legally between the parties.... N.S.S. NARAYANA SARMA AND OTHERS V. MESSRS GOLDSTONE EXPORTS P. LIMITED AND OTHERS (SUPREME COURT OF INDIA) D.D : 23/11/2001 ● COURT AUCTION AND SALE Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 - Application of terms and conditions of sale of properties in terms of the provisions of 1992 Act - Grant of sanction to the sale by Special Court - What would be the interpretation of the terms and conditions of sale?; whether having regard to the interim orders passed by this Court, the learned Judge, Special Court could confirm the sale - Held, if there had been a stay in regard to acceptance of the bid, it could not have been sanctioned - It could be sanctioned subject to the final order of this Court - Moreover, when this Court issued direction in regard to confirmation of sale, the matter ought to have been considered afresh - Acceptance of the bid was subject to order of this Court which, by reason of the order of the Special Court or otherwise did not result in a concluded contract - Matter is r emitted to Judge, Special Court for consideration of the matter afresh in the light of the observations made Order accordingly.... Yogesh Mehta v. Custodian Appointed Under The Special Court and Others (SUPREME COURT OF INDIA) (D.D : 4/1/2007)

ORDER 22 & RULES :● O22 R9&10A:-Death marriage & insolvency of parties-Factors to be t aken into account while condoning delay in bringing LR's on record . ILR1999[4]KAR2767SC ● No abatement of suit when one LR is already on record AIR 1971 SC 742. ● When claim is made against all debts suit will not su rvive after death of the one of the defendants.ILR 1988 KAR 549. ● LR's include heirs as well as persons who represents the estate even without ti tle 1989*2+ SCJ 474. ● O22 R2& O1 R10:-LR's steps into the shoes of their predecessor. They cannot take up any other defence arising out of their individual Rights.ILR1999[3]KAR75&SN117.

● O22 R 4 ;- LR'S have a right to file a W/S ILR 2001 [1] KAR SN5. ● O22 R3& 4;- Non substitution of LR'S of deceased surety will result in abatement of appeal only against the interest of surety ,without affecting the liability of the other parties actually present.ILR 2001 KAR (DB)312. ILR 2001KAR (DB)236 SC. ● O22 R4 & 5 :-Orders passed under does not operate as resjudicata & does not conclusively establish right title to the property or decide such a person as a heir of the deceseased for the purpose of  continuing the suit. ILR 2001 (2) KAR 2292. ● All legal heirs to be brought on record-ILR 1995(4) KAR 3389. ● Dispute as to who is the LR - ILR1996(1) KAR 832.. ILR 1996 (3) KAR 2229. ● Existence of Proceedings not known is the reasons shown for delay to file LR application - delay condoned – ILR 2002 (1) KAR 1064.SC. ●

ORDER 23 & RULES:● AIR 1985 KAR 166, ILR 1984*2+ KAR 194, AIR 1968 SC 111, 1969*2+KLJ522, 1980*2+KLJ390, ILR 1997[3] KAR 1865. ● Advocate can enter into a compromise ILR 1993*1+KAR584*DB+. ● Withdrawl of appeal 1974*2+ KLJ 74. ● Rent control case ILR 1994 *3+ KAR 2455. ● Validity of consent order depends wholly on legal validity of agreement on which it rests AIR 1992 SC 248. ● Compromise does not create a fresh lease - Registration of the compromise not required.AIR 1993 BOM 34. ● O23 R3 & O43 R1A:-Application for setting aside compromise decree maintainable ,and also appeal is maintainable ILR 2000[1] KAR 86. Mandatory procedure to set aside- ILR 2001 (2) KAR 2633(SC). ● O23 R1*4+ *B+ :-Land lord withdrew the eviction petition without reserving the liberty to file afresh petition subsequently the landlord filed yet another eviction petition on t he same cause of action, H.C reling on 1984[2] KLJ 35 held that landlord without seeking the permission of court for second eviction petition is clearly barred under o21 r 1[4] [b]. ILR 2000 KAR 1651. ● O23 R1&3A:- Compromise can be recalled only if it pleaded that fraud is played in bringing about the compromise between the parties also held that suit to set aside compr- omise decree itself is not maintainable ILR1999[3]KAR3344,ILR1995[4]KAR3389. ● O23 R3:- When one party to the suit sets up a compromise in the suit & the other party does the same, the court has to enquire into the matter & has to record a finding whether there was a compromise or not. ILR 2001(1)KAR 1498. ILR 2002(1) KAR 468. ● O23 R1(3):- PLF is having unqualified right to withdraw suit & if he seeks permission to file fresh suit, he is liable to pay costs, ILR 2000 (4) KAR 4295. ● COMPROMISE IN DIVORCE CASE :- ILR 2001 (3) KAR 3459.DB. ●

ORDER 26 & RULES :● Report of commissioner is a piece of evidence ILR 1995*2+KAR 1123. ● REPORT &VALUE OF IT:-ILR 1995 [4] KAR 3286&3428, ILR 1999 [2] KAR 2231, ILR1990KAR2451, ● Acceptance or rejection of commissioner report - courts discretion AIR1965CAL199, ● Suit for injunction -question of possession to be decided by court on the basis of evidence not to be delegated to commissioner ILR 1996[2]KAR 1813,1443, ● Appointment of commissioner where possession & measurement admitted ,No appointment to collect evidence,ILR 1995[2]KAR 1813. ● Commissioner not to be appointed before filing of written statement 1977*1+ MYLJ S NRD 131, 1970MYLJSNRD377, ● Appointment of commissioner for blood test & genetic finger printing test ,protection under Art20[3] confined to criminal proceedings not civil proceedings. ILR 1995[2] KAR 2642. ● A party or a witness or a witness in a c ivil proceedings cannot be compelled to give sample of his blood or subject himself to medical examination against his will ILR 2000 KAR 408. ● Commissioner to examine Ailing witness:-ILR 2000(4) KAR 3623. ● Disputed signature on will- Handwritting expert- ILR 2001(2) KAR 2681. ● The acceptance of commissioner's report cannot amount to a decree.ILR 1996(2) KAR 1552. ● Value of court commissioner report in earlier suit –ILR 1997 (3) KAR 1993. ● ORDER 33 & RULES ; SUITS BY INDIGNENT PERSONS :● Ornaments given at the time of marriage which is meant for wearing during married life are exempt under sec 60(1) (a) in determining capacity to pay court fee.ILR 1996 (2) KAR 1542. ● O33 R2&3:- Petition did not disclose cause of action ILR 2001 (3) KAR 3729. ● Commences from the date of filing application – ILR 1997 (2) KAR 911. ● Application in appeal. ILR 1997 (2) KAR 1291. DB. ● PERSON WHO HAS TAKEN A LOAN WANTS TO FILE A SUIT FOR DAMAGES in forma pauperis. His application is rejected for several reasons. ILR 2001 (4) KAR 4796. ● Is arrears of maintenance taken into account – ILR 1997 (2) KAR 1198. ● Application by a person owning more than three acres of land – ILR 1997 (2) KAR 1535. ● Does not apply to Mortgage Suits – ILR 1998 (2) KAR 1842.SC. ● ORDER 34 & RULES:● O34 R :-Writ petitions seeking relief of payment of interest on delayed refund c ould not be maintained.ILR 1999 [1] KAR 1 SC. ● Interest to be awarded at agreed rate - Industry or Commercial ILR1993[2] KAR 1427. ● Interest on bank transaction 1977*2+ MYLJ 46, ● Interest from date of suit till realization . Defendant to show his financial position for awarding

lesser rate than the RBI rate ILR 1992 [JULY]KAR 2016. ● Increase in rate of interest as per RBI directive , by banks , Increase without notice to debt or violation of Natural Justice -Circulars themselves envisages intimation to debtors & obtaining their consent. ILR 1994 [2] KAR 1129 DB. ● Rate of interest in Bank cases ILR 1995 *3+ KAR 2214. ● Section 21A of Banking Regulation Act 1949 does not override O34 R11 of CPC. -ILR 2001(1) KAR 553. ● Courts Discretion to award interest – ILR 1997 (2) KAR 1042. ● ORDER 38 & RULES :● O38 R6*2+:- ILR 1996[4] KAR 3310. ● Arrest & attachment before judgement-ILR1985[4]KAR3989. ● O38 R5&8,:- Attachment of property before judgement refers only to the property of the defendant & no others property attached is valid one even if it is offered voluntarily ILR 2000 KAR 586. ● ORDER 39 & RULES :-SECTION 94:● Section 151 CPC R/W O39 R1&2-Defendant can claim for T.I.Order ILR1989[1]KAR962,1975[1]KLJ96,ILR1986[2]KAR130. ● O39 R1&2 Open only to plaintiff ILR 1993*1+KAR161, ● Declaration -Injunction-Date of birth-ILR 1992[1] KAR KAR 554. ● No appeal against ex parte T.I.-ILR 1991[3]KAR 3271.ILR1994[2]KAR1653.ONLY O39 R4ILR1996(1)KAR961. ● No injunction against un ascertained property ILR 19 91*2+ KAR 1696. ● ILR 1994*3+ KAR 1715. ● Exparte T.I cannot be granted when caveat U/S148A lodged,ILR1997*1+KAR29. ● O39 R1&2, O40 R1,:-In a suit for injunction plaintiff sought T.I & the defendant appointment of  receiver -Trial court dismissed the application for t he appointment of receiver filed by the defendant, but allowed inj restraining defendants from running the business in the premesis.-High Court refused to appoint receiver ,SUPREME COURT also refused and dissmed appeal .ILR1997[4] KAR 2487 [SC]. ● Siddaganga Mutt's Case:- ILR 1989 [2] KAR 1701. ● When trespasser can get T.I. ILR 1999*2+ KAR 1451.Even against true owner-cannot be thrown out except under due process of Law,ILR2000,KAR 435. ILR 2002 (1) KAR 174. NO T.I AGAINST TRUE OWNER -BY TRESSPASER-ILR 1986 (1) KAR 1130. ● Right to conservancy ILR 1975 MYS 875, AIR 1975 MYS 99,1975*2+KLJ109. ● INJ against co owners cannot be granted or a co sharer in possession restraining him from using the property in a manner which will change the nature of the property . Great caution should be exercised in such a cases AIR 1962 MAD 260, AIR 1958 AP 431, AIR 19 58 PUNJ 318, AIR 1914 CAL 362, AIR194 CAL 436.ILR1999[3]KAR3037. 1972(2) MYLJ 126->unless lawfull possession made out. ● T.I. Grant of circumstances,1962 MYLJ 127, AIR 1952 MYS 76.ILR1952MY354, ● T.I - Subsoil water right ILR 1954 MAD 793.

● O39 R3 :- Police help should be given to party in whose favor INJ order is granted, AIR 1982 AP 394 [OCT]. ILR 2001[1] KAR 462. ● Court cannot direct police to give protection AIR 1971SC742,1976*1+KLJsnrd40, ● O39 R2A:-ILR 1973 MY 391, 1974[2]MYLJ SN 140&78, 1981[1]MYLJ33,ILR 2002 (1) KAR 976. ● Lesse is entitled to be in possession till evicted in due process of law ILR 1985[2] MYS 3700. ● P.I &T.I.,:- Matters to be considered at the time of trial are different for consideration of point at the time of disposal of IA ILR 1986[1] MYS 171.ILR1996[1]KAR753. ● INJ against third party AIR 1949 PAT 496. ● Supreme Court will abstain from passing Interlocutory order U/S 94 if it has effect or tend to be susceptible of an inference of pre judging some important & delicate issue in main matter. AIR 1992 SC 63. ● T.I. restraining authorities from canceling cont ract cannot be granted. AIR1993ALL78, ● The punishment of civil imprisonment in case of violation or disobedience of the order of Inj of a court is to be awarded " In addition to" & not "in lieu of" or in the alternative of the punishment of  attachment of his property. Detachment order passed there under is appealable. AIR 1998RAJ115,AIR 1994 BOM38. ● Belated application for cross examination of the deponent with the object to delay the determination of injunction matter - application rejected.AIR 1994GAU52. ● When a party makes an application for an immediate exparte TI & the court refusal to grant such INJ & instead issues notice to the opposite party , the order of refusal appealable under O43 R1[r] ● Patent infringement-ILR 1995[3]KAR2010. ● Demolition by municipality ILR 1995[3]K AR2615. ● INJ against public authorities -Directions for the courts to follow the directions laid down by Apex Court- ILR 1995[4] KAR 3579. ● QUASI-JUDICIAL authorities cannot usurp the rights of Civil courts, AIR 1968 SC 620. AIR 1987 KAR 79. ● O39 R3A:-Exparte TI to be disposed of within 30 days - If not appeal lies appellate court may taking suitable action against erring Judicial officer including recommendi- -ng to take steps for making adverse entry in his ACR's. Party obtaining exparte TI has to perform his duty under cl[a]&[b] of O39 R3. Disobedient beneficiary of order cannot be heard t o complain against any dis obedience alleged against other party. ILR 2001 KAR 1.[SC] ● Suit for Dissolution of partnership,T.Iwas sought for restraining business activity&alie nation of  properties.Only T.Inot to alienate the property was given. ILR2000 [4]kar 3624. ● Khartha sold it , other coparceners have no right to interfere with alienee . Alienee entitled to T.I. to protect his possession ILR1996[2]KAR 1883. ● Suppresion of fact of earlier dismissed application ILR1996*2+KAR1618. ● DIRECTION TO POLICE FOR ENFORCEMENT CAN BE GIVEN: - ILR 1996[2]KAR 1271. ● Principles under Specific Relief Act having controlling power when T.I. granted - hardship or injuryILR1996[2] KAR 1485. ● NO T.I. IF SUIT ITSELF IS NOT MAINTAINABLE-ILR1992[4]KAR1772. ● Previous litigation & finding & new T.I. - 1977 [2] KLJ 489. ● O39R4:- When house building society allotted sites to plf only on the basis of approved plan of 

layout -No final notification in acquisition proceedings has taken place -society is not having any title. Plf getting T>I> on the basis of plan of layout- not proper-ILR2001(2)KAR3249. ● T.I may be granted even if P.I. is not sought in suit - ILR 1987(3)KAR 2863.● Undertaking given to court - 1974 (1) KLJ S.N.180. ● O 39 is not applicable to probate proceedings 1963(1) MYLJ 549.● Inherent powers -T.I can be issued -1962MYLJ 1037. ● Inj to restrain departmental enquiry- 1979 (1) KLJ 338. ● Attachment before Jdt & grant of T.I -different-1975(1)KLJ S.N.161. ● Primafacie case - Imminent danger -irreparable loss - Balance of convenience -1970 (2) MYLJ 82. ● Seizure of accounts and documents - courts cannot pass such orders -AIR 1961 SC 218. ● Discretionary relief of injunction should not be granted when equally effacious remedy is available.AIR 1976 SC 2621. ● Possession- & Inj- 1974(2) KLJ 484.● POSSESSION GOES WITH TITLE- 1983(1) KLC 7. ● QUESTION OF TITLE NOT raised -peace full enjoinment for long period -Inj granted -1982(2) KLJ 301,1231. ● Mandatory INJ - cardinal principles -1983 (2) KLJ 377. ● Intending Transferee in possession files Inj suit -section 53A of TP Act -1981(2) KLJ 388. ● Neither plaintiff nor defendant establishing possession- one of them establishing title- presumption of possessionin his favour to be made 1983 (1) KLJ 69. ● INJ against PLf not to proceed with earlier suit - Requires great caution & care - such an order should not be made unless in absolutely necessary - AIR 1962 SC 527. AIR 1976 DEL 60. ● Delay in approaching court not a ground to refuse INJ - 1981(2) KLJ 92. ● Unsustainable T.I - failure in considering standing orders by trial court - Misapplication of law and order illegal. 1981(1) KLJ 350. ● Coclusion of courts should be based on material facts - news paper cutting, opinions expressed by  judges reported in news paper- should not influence judicial process.-ILR 1985 (1) KAR 918. ● CONDUCT OF PARTY IS RELEVANT. - 1975(2) KLJ 428. - 1965 (1) MYLJ 370. ● INJ against members of SOCIETY WHICH IS UN REGISTERED cannot be issued- AIR 1981 CAL 393. ● Aggrieved by conditions imposed in granting T.I , only revision lays & not appeal before HC ILR 1996(3) KAR 2352. ● Plf aware of it - and guilty of acquisence -Bal of con not in Plf favour-T.I rejected.ILR 1996(4) KAR 2957. ● Primafacie case not established - ILR 1997 (1) KAR 304. ● Oral agreement - INJ restraining sale could not be granted- AIR 1995 MAD 172. ● No Interim order to stop executing a will – ILR 2001 (3) KAR 3466 DB. ● Grant of exparte order without issuing notice to caveator is illegal. ILR 1997 (1) KAR 29. ● Maintenance of status quo ought to be ordered- ILR 1997 (2) KAR 900. ● INJ vacated when it is given without finding as to possession. – ILR 1997 (2) KAR 999. ● INJ may be given only by making proper provision for its confirmation or modification or hearing the other side otherwise it is arbitrary – ILR 2001 (4) KAR 4634. ● INJ Restraining a person having life interest only under the terms of will from alienating the property – cannot be granted. ILR 1997 (4) KAR 3089.

● O39 R4 & SEC115:- Appellate court should not interfere lightly with t he discretion excercised by trial court.- ILR 1998 (1) KAR 419. ● Mandatory Injunction – Encroachment in 3 guntas of land – when large portion of landis encroached mandatory INJ shall have to be issued as the plaintiff will be losing not only his right over site but also a right to put up the building of his choice. ILR 1998 (2) KAR 1976. ● Suit for Declaration & Mandatory INJ :- ILR 1998 (2) KAR 1206. ORDER 40 & RULES :● O40 R3:- Return of plaint for presentation to another court after court appointing receiver - court having jurisdiction over receiver.1968[2] MYLJ 474. ● Receiver can be appointed after decree to safeguard the int erest of parties - during pendency of  further proceedings. 1963 MYLJ 145. ● AIR 1952 NAG 258, AIR 1954 PUN 122, AIR 1957 NAG 1, AIR 1955 MP 40, 1965*2+MYLJ 548. ● Sub Rule 2 of O40 R1 Clearly indicates that the court & its officer does not possess any righ t higher than the right a party to a suit possess AIR 1997 SC 173. ● Receiver taking vacant possession of the property can not induct tenant in the property without the permission of the court.AIR 1993 BOM 265. ● Receivership cannot be imposed on the parties by the court. AIR 1994 SC 478. ● ORDER 41 & RULES :-SECTION 107:● Appeals from original decrees ILR 1992 *2+ KAR 3772. ● Remand order can be passed only when the appeal is heard on merits. 1972 MYLJ dt 23 -3-72 SNRD. ● Appeal court has no jurisdiction to set aside the decree, which has not been appealed against. 1972 MYLJ dt 23-3-72 SNRD 112. ● Sufficient evidence on record enabling the appellate court to come to the just & satisfactory conclusion, No ground exists for making order of remand AIR1968MY266, 19 68[1]MYLJ288,ILR 1999[3]KAR[SC] 2897. ● O41 R5 :- Stay of INJ order, AIR 1937 ALL 528, ● Cross Objections - ILR 1995[4] KAR 2732. ● Remand and re opening - ILR 1995 *4+ KAR 2072&3100. ● O41 R11:- ILR 1997[2]KAR1291. ● O41 R23:-Remand-powers of High court should not ordinarily be exercised merely be- -cause in its view reasoning of lower court in some aspects was wrong AIR1999SC1125 ● O41 R3A Sec 5 of LMT ACT :- In case of time barred appeals - condonation of delay applicationsCourt can & has power to give an opportunity to the party concerned to remove the defect by filing an application for condonation of delay ILR1999KAR3762. ● No court can scuttle or foreclosure a statutory remedy of appeal or revision by directing a party to give an undertaking regarding compliance of its orders. ILR 1999 [1] KAR 623 [SC]. ● o41 r27:- Question of production of evidence in appellate court does not arise at all, as the respondent had not filed the written statement. ILR 2000 [4] KAR 5033. ● O41 R30;- Appeal dismissed without giving reasons and considering all points -not

proper.ILR2001KAR235(SC). ● O41 R33:- Rule is to award contractual rate of interest, reduction in INT only for good reasons. ILR2001KAR (DB)312. ● O41 R1:- Jurisdiction can be excercised in Review of Judgments only if there is error apparent on the face of record ILR 2001(1) KAR 679, But not too late :- ILR 1997 (4) KAR 3268 (SC). ● Error or defects not affecting merits of case, decree not to be reversed, modified or case to be remanded-ILR1996 (1)KAR263. ● STAY;- 1977(2)MYLJ 53. 1981[2] MYLJ 353. ● Limitation for filing cross objection by respondents – ILR 1996 (3) KAR 2257.DB. ● Under the code there could be no appeal against a finding yet "on grounds of justice" an appeal may lie against a finding provided it would operate as resjudicata so a s to preclude party aggrieved by the finding from agitating the question covered by the finding in any other proceeding. ILR 1996(2) KAR 1445. ● If respondent intends to challenge part of the decree , based on ce rtain findings, cross objections has to be filed but it is open to respondent to support decree by showing that a particular finding should not have been recorded can do so by not filing objections: ILR 1996 (2) KAR 1321. ● First appeal & second appeal-matters to be dealt with- ILR 2001 (3) KAR 3385 SC. ● At admission stage only appellant side has to be heard. ILR 1997 (2) KAR 1291. DB. ● O41 R27:- Suit for permanent INJ Decreed exparte. In first appeal, the defendant sought to produce two documents to show that possession was taken over from the plaintiff long back. Supreme Court allowed the application for additional Evidence ILR 1997 (4) KAR 3119.SC. ILR 1998 (1) KAR 331.SC. ILR 1998 (2) KAR 1206. ● Suit itself dismissed instead of appeal in appeallate court – ILR 1998 (1) KAR 916. ● Account books marked, relevant entries were not marked,- application at appeal stage to produce evidence- application not allowed.- ILR 2002 (1) KAR 1471. ● O41 R27:- Insurance company filed IA to produce policy in appeal- Rejected. ILR 1998 (3) KAR 2073. ●

ORDER 43 & RULES :● Appeal lies as against the order of dismissal of application for restoration of a dismissed suit & not revision. ILR 2000 [1] KAR SN4. ● Exparte injuction order can be challenged by filing appeal or by approaching the same court for vaction ILR2001 KAR 1[SC]. ● Order either approving or directing alteration in the draft of the document or the transfer deed are appealable and the party aggrieved can file an appeal from that order. If no appeal is filed such order becomes final.ILR 1996 (2) KAR 1552. ● Suit dismissed for non payment of addl c ourt fee- appeal maintainable –ILR 1996(4)KAR 3403. ●

ORDER 47 & RULES:-SECTION 115:● Review powers of HRC Court- No powers - ILR 1992 [2] KAR 1706,ILR 1987 [1] KAR 715, ILR 1993 [2] KAR 1120. ● AIR1966SC153,AIR1968SC439, AIR1963SC698, AIR1964SC1336,1341. AIR1965SC553&1585, AIR1968RAJ237, AIR1968DEL181/188,AIR1970PUN451, ● When subordinate court decides the matter before it ignoring the ruling of High Courts, which is binding on it it acts in excess of its jurisdiction ,High Court can interfere 1965*2+ MYLJ 598. ● AIR 1953 SC23, 1964[2] MYLJ SC 36, AIR 1966 SC 153&439, ● Ground of total misreading of admitted material or record -Application should be supported with an affidavit AIR 1994 CAL 165. ● Passed by second appellate court - cannot be reviewed on the ground that discovery of new evidence on question of fact- AIR 1993 DEL85. ILR 1995[4]KAR 3420. ● SEC 115:- & O9 R 13:- Trial court set aside the exparte decree relying on the opinion of handwriting expert & holding that process server has forged the signature of the defendants.High court cannot interfere with the finding as it amounts to weighing the evidence which is impermissible under section 115. ILR 2001(1) KAR 1391.(SC). ● Existence of alternative remedy not bar in giving relief in review petition, ILR 1995 (4) KAR 3389. ● Erroneous decision on questions of law or fact affecting jurisdiction open to revision - ILR 1996(1)KAR 753. ● SEC 115;-Revision lies against 'case decided'- affidavit of one party sought to be produced in evidence its rejection is ' case decided' ILR 1996(1) KAR 1957&1808. ● Question of suppression of material fact is a mixed question of fact & law ,Revisional court is not the proper forum for agitating the point - AIR 1995 CAL 113. ● Where it is shown that orders are obtained by playing fraud , the court gets jurisdiction to go beyond the limits permissible under law to review a judgment – ILR 2001 (3) KAR 3532. ● When court exercise its discretion by application of its mind to the peculiar facts & nature of  dispute- the same cannot be interfered in revision. ILR 2001 (3) KAR 3604. ● REVIEW can be if it is shown that new material is discovered or where there is an error apparent on the face of the record. ILR 1997 (3) KAR 1824.[HINDU SUCCESSION ACT] ● ILR 1997 (2) KAR 808. ● Claims tribunal is not civil court for section 115 – ILR 1998 (4) KAR 3733. ●

Hon'ble Supreme Court as far back as in 1953 in case of State of Bombay v. Pandurang, AIR 1953 SC 244 held as under:"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical concusion."

But while interpreting a legal fiction, care should betaken that is so construing the legal fiction it is not to be extended beyond the purpose pose for which it has been created. See Dr. Bali Ram Waman Hirary v. Mr. Justice B. Lentin and Ors., AIR 1988 SC 2267 Para 29. Hon'ble Supreme Court in the above case has held that first part cannot be read in isolation, but must take its colour from the context in which it appears. It would not be correct to contend that the fiction created by the first part by the words shall be deemed to be a Civil Court' is full and complete in itself. The purpose and object of the legal fiction created by the first part of Sub-section (4) is reflected in the second. A Commission of Inquiry is, therefore, fictionally a Civil Court for the limited purpose of proceeding Under Section 432 of old Code or Under Section 346 of the present Code. A fortiori, the legal fiction contained in Sub-section (5) of  Section 5 which relates to the proceedings before the Commission is necessarily confined to offences that are punishable Under Sections 193 and 228 of the Indian Penal Code and does not extend beyond that. State Of Rajasthan vs Babu Ram AIR 2007 SC 2018 The word "person" has not been defined in the Narcotic Drugs and Psychotropic Substances Act, 1985. One of the basic principles of interpretation of  Statutes is to construe the words according to their plain, literal and grammatical meaning. The word "person" has not been defined in the Act. Section 2(xxix) of the Act says that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. The Code, however, does not define the word "person". Section 2(y) of the Code says that the words and expressions used therein and not defined but defined in the Indian Penal Code, 1860 have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word "person" includes any Company or Association or body of  persons whether incorporated or not. Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand….. One of the basic principles of interpretat ion of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity….. In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary. ……. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a

carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act……… The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172)and para 12 of the reports is being reproduced below : "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below : "57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of  his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of  the illicit article, recovered from his person, during a search conducted in violation of the provisions of  Section 50 of the Act. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law."

The Supreme Court in Kerala State Electricity Board v. T.P. Kun-haliumma [1976] 4 SCC 634 ; AIR 1977 SC 282 held as follows (p. 285): ".....The words 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be a petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of the prescribed period when the court is closed and extension of the prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period." State of Punjab v. Baldev Singh 1999 SCC (Criminal) 1080, wherein it was held: (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken

down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. In State of Haryana v. Jarnail Singh and Ors. 2004 VI AD (S.C.) 499, it was observed, Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of  the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. In Narayanaswamy Ravishankar v. Asstt. Dir., Directorate of Revenue Intelligence 2002 VIII AD (S.C.) 204, it was held, In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the Airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant. Sajan Abraham vs. State Of Kerala, 2001 AIR SCW 2970; Hon'ble Supreme court held that in this case the communication to the immediate superior had not been made in the form of a report by the officer who made the arrest and seizure but the officer had sent the copies of the FIR along with other records regarding arrest of the accused-appellant and seizure of the contraband articles were sent by the officer to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This Section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749, S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr (2005) 8 SCC 89 and Keki Hormusji Gharda & Ors. Vs. Mehervan Rustom Irani & Anr. (2009) 6 SCC 475, learned counsel contended that the IPC, save and except in some specific cases, does not contemplate vicarious liability of a person who is not directly charged for the commission of an offence, and a person cannot be made an accused merely by reason of his official position. Further, it was contended that in order to launch prosecution against the officers of a company, the complainant must make specific averments as to the role played by each of the officials accused in the complaint. The meaning of the word `vesting' has been considered by this Court time and again. In The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344, this Court held that the meaning of word `vesting' varies as per the context of the Statute in which the property vests. While considering the case under Sections 16 and 17 of the Act 1894, the Court held as under: ...the property acquired becomes the property of Government without any condition or limitations either as to title or

possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration." "Encumbrance" actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. (Vide Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR 1955 SC 298; H.P. State Electricity Board and Ors. v. Shiv K. Sharma and Ors., AIR 2005 SC 954; and AI Champdany Industries Ltd. v. Official Liquidator and Anr., (2009) 4 SCC 486). In State of Himachal Pradesh v. Tarsem Singh and Ors., AIR 2001 SC 3431, this Court held that the terminology `free from all encumbrances' used in Section 16 of the Act 1894, is wholly unqualified and would en-compass the extinguishing of "all rights, title and interests including easementary rights" when the title vests in the State. Thus, "free from encumbrances" means vesting of land in the State without any charge or burden in it. Thus, State has absolute title/ownership over it. In Satendra Prasad Jain and Ors. v. State of U.P. and Ors., AIR 1993 SC 2517, Supreme Court held that once land vests in the State free from all encumbrances, it cannot be divested. The same view has been reiterated in Awadh Bihari Yadav and Ors. v. State of Bihar and Ors., (1995) 6 SCC 31; U.P. Jal Nigam, Lucknow v. M/s Kalra Properties (P) Ltd. Lucknow and Ors., AIR 1996 SC 1170; Pratap and Anr. (Supra); Chandragauda Ramgonda Patil and Anr. v. State of Maharashtra and Ors., (1996) 6 SCC 405; Allahabad Development Authority v. Nasiruzzaman and Ors., (1996) 6 SCC 424; State of Kerala and Ors. v. M. Bhaskaran Pillai and Anr., AIR 1997 SC 2703; M. Ramalinga Thevar v. State of Tamil Nadu and Ors., (2000) 4 SCC 322; Printers (Mysore) Ltd. v. M.A. Rasheed and Ors., (2004) 4 SCC 460; Bangalore Development Authority and Ors., v. R. Hanumaiah and Ors,. (2005) 12 SCC 508; and Government of  Andhra Pradesh and Anr. v. Syed Akbar, AIR 2005 SC 492. In a similar situation, in Gulam Mustafa and Ors. v. The State of Maharashtra and Ors., AIR 1977 SC 448, this Court held as under: "Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the....declaration." Re-iterating a similar view in C. Padma and Ors. v. Deputy Secretary to the Government of Tamil Nadu and Ors., (1997) 2 SCC 627, this Court held that if by virtue of a valid acquisition of land, land stands vested in the State, thereafter, claimants are not entitled to restoration of possession on the grounds that either the original public purpose is ceased to be in operation or the land could not be used for any other purposes. In Bhagat Singh etc. v. State of U.P. and Ors., AIR 1999 SC 436; Niladri Narayan Chandradhurja v. State of  West Bengal, AIR 2002 SC 2532; and Northern Indian Glass Industries v. Jaswant Singh and Ors., (2003) 1 SCC 335, this Court held that, the land user can be changed by the Statutory Authority after the land vests in the State free from all encumbrances. In Palitana Sugar Mills (P) Ltd. and Another vs. State of Gujarat and Others, (2004) 12 SCC 645, this Court reiterated the principle that a judgment of this Court is binding on all and it is not open to contend that

the full facts had not been placed before the Court. In this regard, para 62 of the judgment reads as follows: "62. It is well settled that the judgments of this Court are binding on all the authorities under Article 142 of the Constitution and it is not open to any authority to ignore a binding judgment of this Court on the ground that the full facts had not been placed before this Court and/or the judgment of  this Court in the earlier proceedings had only collaterally or incidentally decided the issues ......"

In A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others, (2007) 4 SCC 221, this Court observed as under: "38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff  applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order." The Court has approved this well settled principle that a judgment of the Supreme Court cannot be collaterally challenged on the ground that certain points had not been considered. This Court in Anil Kumar Neotia and Others vs. Union of India and Others, (1988) 2 SCC 587 held that it is not open to contend that certain points had not been urged or argued before the Supreme Court and thereby seek to reopen the issue. The relevant portion of the judgment is as follows: "... This Court further observed that to contend that the conclusion therein applied only to the parties before this Court was to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory..... It is no longer open to the Petitioners to contend that certain portions had not been urged and the effect of the  judgment cannot be collaterally challenged."

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GO Tag Archives: indian penal code 1860 June 2, 2012 Supreme court on law of attempt to rape

In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable, by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of  success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt, must be united to Injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. Supreme Court of  India

Koppula Venkat Rao vs State Of Andhra Pradesh on 10 March, 2004 Equivalent citations: AIR 2004 SC 1874, 2004 CriLJ 1804, JT 2004 (3) SC 328 Author: A Pasayat Bench: D Raju, A Pasayat JUDGMENT Arijit Pasayat, J. 1. “Taking lift on a bicycle after a late night movie show and travelling in darkness can result in some

harrowing traumas for a teenaged girl, as the victim in the present case experienced. 2. Accused-appellant Koppula Venkat Rao calls in question legality of his conviction as recorded by the Trial Court and upheld by Learned Single Judge of the Andhra Pradesh High Court under Section 376 of  the Indian Penal Code, 1860 (in short “the IPC”). He was sentenced to undergo 10 years RI by the Trial

Court which was reduced to 5 years by the High Court. 3. Accusations which led to the trial of the accused are essentially as follows: On 10.6.1991, at about 6.00 p.m. the victim along with her friend and two others started by walk from their village to go to a nearby place for witnessing a movie. They reached cross-roads of the village where the accused along with his friends who were going to Borrampalem on their bicycles met them and gave lift to the victim girl and her friends and all of them witnessed the picture at a movie hall. At the time of return accused nourished an idea of quenching his lust by committing sexual intercourse with the victim, invited her to board his bicycle and the victim girl agreed to accompany him and sat on his bicycle and the accused rode the bicycle at high speed and reached near a cattle, shed, stopped the bicycle dragged the victim by using criminal force into the cattle shed took out her sari, and got on top

of her before actual intercourse ejaculated. The accused left the victim on hearing some sound and went away along with his bicycle. Thereafter, the victim girl came on to the road. The parents of the victim girl took her to the village. The father of the victim girl approached the village elders on the same night who promised to summon the accused on the next day. But the accused did not turn up till the evening. On 12.6.1991, when the victim girl along with her parents were on the way to Police Station the S.I. of  police met them and asked them to go to the Government Hospital, and there he recorded the statement of the victim girl and on the basis of statement a crime was registered in crime No. 39/91 and investigation was started. After investigation, charge sheet was filed. The accused pleaded innocence and faced trial. 4. Prosecution examined 12 witnesses. PW-1 is the victim while PW-2 and PW-3 are her motherland father respectively. PW-5 is the doctor who examined the victim and PW-12 is the doctor who examined the accused. 5. Placing reliance on the evidence of PW-1, the Trial Court convicted the accused as aforesaid holding that the victim was subjected to rape by the accused. Conclusions were upheld by the High Court. Both the Courts held that since ejaculation was there, it amounted to rape and whether actual intercourse was there is immaterial, ejaculation being the ultimate act of sexual intercourse. 6. In support of the appeal, learned counsel for the appellant submitted that the prosecution version has many loose ends and the courts below have not analysed the evidence in their proper perspective. Additionally, the evidence of PW-1 and the doctor’s evidence clearly rules out the commission of rape as alleged. Even if the prosecution version is accepted in its totality, no case of rape is made out and at the most a case of attempt to rape is made out. Actual intercourse and not ejaculation is the sine qua non of  the offence. 7. Per contra, learned counsel for the respondent-State submitted that the well-reasoned orders of the Trial Court and the High Court unerringly point out that accused had committed rape on the victim, as established beyond a shadow of doubt. The version of the prosecutrix alone can form the foundation of  conviction. 8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable, by other

specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of  the offender is the same as if he had succeeded. Moral guilt, must be united to Injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of  the offence. The moment he commences to do an act with the necessary Intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken

in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it: and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress, has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of  the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing, line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of  determination in attempt as compared with preparation. 10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a c riminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or

consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect. 12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section

provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of  rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view. 13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and 1/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence. 14. The appeal is allowed to the extent indicated.  



Posted in Uncategorized Tagged 1860, 2004, 2007, 2009, 375, 376, 376 ipc, arijit pasayat, attempt to rape, Balan (A) Kulla Balan vs The State Of Ta penal code 1860, intercourse,ipc 376, Makhan Lal Dongare vs State Of Chhattisgarh on 23 November , Muthu vs State, ra November, sec 376 ipc, sec 376 of ipc, Section 122 in The Indian Penal Code, section 375, section 376, Section 376 in The Penal Code, Section 511 in The Indian Penal Code, sexual intercourse, The State Of U.P. vs Chhatrasal Singh S/O Surat Sin Leave a comment May 28, 2012 Fraud includes two elements – deceit – and injury to person decieved – in absence of latter no fraud

Facts : Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months. The price of tile car was paid by her. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla. Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents. She signed the claim forms as Nalini. She also signed the receipts acknowledging the pay- ment of compensation money as Nalini. Dr. Vimla and her husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code. Both the accused were acquitted by the Sessions Judge. The State went in appeal and the High Court convicted Dr. Vimla under s. 467 and 468 of the Indian Penal Code. Dr. Vimla came to this Court by special leave. Held, that appellant was not guilty of the offence under s. 467 and 468 of the Indian Penal Code. She was certainly guilty of deceit because though her name was Vimla, she signed in all the relevant papers as Nalini and made the Insurance Company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the Insurance Company. The charge did not disclose any such advantage or injury nor was there any evidence to prove the same. The entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter. Nalini was in fact either a Benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations. The Insurance Company would not have acted differently even if the car stood in the name of Dr. Vimla. 586 The definition of ‘false document’ is a part of t he defini- tion of forgery’ and both must be read together. If so read, the ingredients of the offence of forgery relevant to the present case are as follows: (1) fradulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another under his authority ; and (2) making of  such a document with an intention to commit fraud or that fraud may be committed. The expression ‘fraud’ involves two elements, deceit and injury to the person deceived. Injury is

something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Haycraft v. Creasy, 1801) 2 East 92, in re. London and Globe Finance Corporation Ltd., (1903) 1 Ch. 732 R. v. Welham, (1960) 1 All. E R. 260, Kotamraju Yenkatrayadu v. Emperor (1905) I.

L. R. 28 Mad. 90, Surendra Nath Ghose v. Emperor, (1910) I. L. R. 38 Cal. 75, Sanjiv Ratnappa v. Emperor, A. I. R. 1932 Bom. 545 and Emperor v. Abdul Hamid, A. 1. R. 1944 Lah. 380, referred to.

Supreme Court of India Dr. Vimla vs Delhi Administration on 29 November, 1962 Equivalent citations: 1963 AIR 1572, 1963 SCR Supl. (2) 585 Bench: Subbarao, K. PETITIONER: DR. VIMLA Vs. RESPONDENT: DELHI ADMINISTRATION DATE OF JUDGMENT: 29/11/1962 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA

MUDHOLKAR, J.R. CITATION: 1963 AIR 1572 1963 SCR Supl. (2) 585 CITATOR INFO : D 1963 SC1577 (7,9,10) RF 1976 SC2140 (10) ACT: Criminal Trial-Meaning of ‘dishonestly’ and ‘ fraudu- lently’-Meaning of ‘false document’ and ‘forgery’ Indian Penal Code, 1860 (Act 45 of 1860), ss. 24, 25, 463, 464, 467, 468. HEADNOTE: Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months. The price of  tile car was paid by her. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla. Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents. She signed the claim forms as Nalini. She also signed the receipts acknowledging the pay- ment of compensation money as Nalini. Dr. Vimla and her husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code. Both the accused were acquitted by the Sessions Judge. The State went in appeal and the High Court convicted Dr. Vimla under s. 467 and 468 of the Indian Penal Code. Dr. Vimla came to this Court by special leave. Held, that appellant was not guilty of the offence under s. 467 and 468 of the Indian Penal Code. She was certainly guilty of deceit because though her name was Vimla, she signed in all the relevant papers as Nalini and made the Insurance Company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the Insurance Company. The charge did not disclose any such advantage or injury nor was there any evidence to prove the same. The entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter. Nalini was in fact either a Benamidar for Dr. Vimla or her name was used for luck or other sentimental

considerations. The Insurance Company would not have acted differently even if the car stood in the name of Dr. Vimla. 586 The definition of ‘false document’ is a part of t he defini- tion of forgery’ and both must be read together.

If so read, the ingredients of the offence of forgery relevant to the present case are as follows: (1) fradulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another under his authority ; and (2) making of  such a document with an intention to commit fraud or that fraud may be committed. The expression ‘fraud’ involves two elements, deceit and injury to the person deceived. Injury is

something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Haycraft v. Creasy, 1801) 2 East 92, in re. London and Globe Finance Corporation Ltd., (1903) 1 Ch. 732 R. v. Welham, (1960) 1 All. E R. 260, Kotamraju Yenkatrayadu v. Emperor (1905) I. L. R. 28 Mad. 90, Surendra Nath Ghose v. Emperor, (1910) I. L. R. 38 Cal. 75, Sanjiv Ratnappa v. Emperor, A. I. R. 1932 Bom. 545 and Emperor v. Abdul Hamid, A. 1. R. 1944 Lah. 380, referred to. JUDGMENT: CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 213 of 1960. Appeal by special leave from the judgment and order dated March 24, 1960, of the Punjab High Court (Circuit Bench)Delhi in Criminal Appeal Case No. 41-D of 1958. H. L. Anand, and K. Baldev Mehta, for the appellant. V. D. Mahajan and P. D. Menon, for the respondent. 1962. November 29. The Judgment of  the Court was delivered by 587 SUBBA RAO J.-This appeal by Special leave raises the question as to the true meaning of the expression “fraudulently’ in s. 464 of the Indian Penal Code. The facts either admitted or found by the c ourts below

may be briefly stated. The appellant is the wife of Siri Chand Kaviraj. On january 20, 1953, she purchased

an Austin 10 Horse Power Car with the registration No. DLA. 4796 from Dewan Ram Swarup in the name of her minor daughter Nalini aged about six months at that time. The price for the car was paid by Dr. Vimla. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The car at that time was insured against a policy issued by the Bharat Fire & General Insurance Co., Ltd., and the policy was due to expire sometime in April, 1953. On a request made by Dewan Ram Swarup, the said policy was transferred in the name of Nalini. In that connection, Dr. Vimla visited the Insurance Company’s Office and signed the proposal form as Nalini. Subsequently, she also filed two claims on the

ground that the car met with accidents. In connection with these claims, she signed the claim forms as Nalini and also the receipts acknowledging the payments of the compensation money as Nalini. On a complaint made by the company alleging fraud on the part of Dr. Vimla and her husband, the police made investigation and prosecuted Dr. Vimla and her husband Siri Chand Kaviraj in the Court of  Magistrate 1st Class Delhi. The ‘Magistrate committed Dr. Vimla and her husband to Sessions to take

their trial under ss. 120-B, 419, 467 and 468 of the Indian Penal Code. The learned Sessions judge held that no case had been made out against the accused under any one of those sections and on that finding, acquitted both of them. The State preferred an appeal to the High Court of Punjab and the appeal was disposed of by a Division Bench of that court comprising Falshaw 588 and Chopra,JJ. The learned judges confirmed the acquittal of Siri Chand; but in regard to Dr.Vimla, they confirmed her acquittal under s. 419 of the Indian Penal Code, but set aside her acquittal under ss. 467 and 468 of the Code and instead, convicted her under the said sections and sentenced her to imprisonment till the rising of the court and to the payment of a fine of Rs. 100/- or in default to under-, go simple imprisonment for two weeks. Dr. Vimla has preferred the present appeal by special leave against her conviction and sentence. The facts found may be briefly summarised thus : Dr. Vimla purchased a motor car with her own money in the name of her minor daughter, had the insurance policy transferred in the name of her minor daughter by signing her name and she also received compensation for the claims made by her- in regard to the two accidents to the car. The claims were true claims and she received the moneys by signing in ,he claim forms and also in the receipts as Nalini. That is to say, Dr. Vim] a in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter. Nalini was in fact either a benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations. On the facts found, neither Dr. Vimla got any advantage either pecuniary or otherwise by signing the name of Nalini in any of the said documents nor the Insurance Company incurred any loss, pecuniary or otherwise, by dealing with Dr. Vimla in the name of Nalini. The Insurance Company would

not have acted differently even if the, car stood in the name of Dr. Vimla and she made the claims and received the amounts from the insurance company in her name. On the said facts, the question that arises in this case is whether Dr. vimla was guilty of offences under ss. 463 and 464 of the Indian Penal Code. 589 Learned Counsel for the appellant contends that on the facts found, the appellant would not be guilty of  forgery as she did not “fraudulently” sign the requisite forms and the receipts in the name of Nalini, as.

by so signing, she did not intend to cause injury to the insurance company. In other words, the contention was that a person does not act fraudulently within the meaning of s. 464 unless he is not only guilty of deceit but also he intends to cause injury to the person or persons deceived, and as in the present case the appellant had never had the intention to cause injury to the insurance company and as on the facts found no injury had been caused at all to the company, the appellant could not be found guilty under the said sections. Before we consider the decisions cited at the Bar it would be convenient to look at the relevant provisions of the Indian Penal Code. Section 463 : Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464 : A person is said to make a false document- First –Which dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document/or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time 590 at which he knows that it was not made, signed, scaled or executed; or The definition of “false document” is a part of the definition of “forgery”. Both must be read together. If 

so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows , (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority ; (2) making of 

such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mens rea described in s.464 i. e., “fradulently” and the intention to commit fraud in s.

463 have the same meaning. This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other in- tentions mentioned in s. 463. The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression. The scope of that something more is the subject of may decisions. We shall consider that question at a later stage in the light of the decisions bearing on the subject. The second thing to be noticed is that in s. 464 two adverbs, “dishonestly” and “fraudulently” are used alternatively indicating thereby that one excludes

the other. That means they are not tautological and must be given different meanings. Section 24 of the Penal Code defines “dishonestly” thus :

“Whoever does anything with the intention of causing wro ngful gain to one person or wrongful loss to another person, is said to do t hat thing dishonestly”. “Fraudulently” is defined in s. 25 thus:

” A perosn is said to do a thing fraudulently if he does that thing with inte nt to

591 defrand but not otherwise”.

The word “defraud” includes an element of deceit. Deceit is not an ingredient of the definition of the word “dishonestly” while it is an important ingredient of the definition of the word “ fraudulently”. The

former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further) the juxtaposition of the t wo expressions “‘dishonestly” and “fraudulently” used in the

various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of “dishonestly”, wrongful gain or wrongful loss is the necessary enough. So too, if the expresssion “fraudulently’ were to be held to involve the e lement of 

injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of fr aud” would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of “dishonestly” that to satisfy the definition of  “‘fraudulently” it would be enough if there was a non- economic advantage to the deceiver or a non-

economic loss to the deceived. Both need not co-exist.

Let us now consider some of the leading text book writers and, decisions to ascertain the meaning of the word “fraudulently”.

The classic definition of the word “fraudulently” is found in Steplien’s History of the Criminal law of  England, Vol. 2, at p. 121 and it reads “I shall not attempt to construct a definition which will meet every case which might

592 be suggested, but there is little danger in saving tha t whenever the words “fraud” or intent to defraud” or “fraudulently” occur in the definition of a crime two elements at least are essential to the commission

of the crime : namely, first, deceit or an intention to deceive or in some cases mere secrecy ; and secondly, either actual injury or possible injury or to a risk of possible ‘injury by means of that deceit or secrecy…………. This intent is very seldom the o nly, or the principal, intention entertained by the

fraudulent person, whose principal object in ne arly every case is his own advantage…………….. A practically conclusive test of the fraudulent character of a deception for criminal purposes is this : Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known ? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud.”

It would be seen from this passage that “‘fraud” is made up of two ingredients, deceit and injury. The

learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. Though the author has not visualized the extremely rare situation of an advantage secured by one without a corresponding loss to another, this idea is persued in later decisions. As regards the nature of this injury, in Kenny’s Outline of Criminal Law, 15th Edn., at p. 333, it is stated

that pecuniary detriment is unnecessary. In Haycraft v. Creasy (1) LeBlanc, observed (1) (1801) 2 East 92. 593 “by fraud is meant an intention to deceive; w hether it be from any expectation of advantage to the

party himself or from the ill-will towards the other is immaterial.” This passage for the first time brings

out the distinction between an advantage derived by the person who deceives in contrast to the loss incurred by the person deceived. Buckley. J., in Re London & Clobe Finance Corporation Ltd. (1) brings out the ingredients of fraud thus : “To deceive is, I apprehend, to induce a man to believe that a thing is

true which is false, and which the person practising the deceit knows or believes to be false. To. defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury’ More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of  action.”

The English decisions have been elaborately considered by the Court of Criminal Appeal in R. v. Welhant (2). In that case, hire-purchase finance companies advanced money on a hire-purchase form and agreement and on credit-sale agreements witnessed by the accused. The form and agreements were forgeries The accused was charged with offences of Uttering forged documents with intent to defraud. It was not proved that he had intended to cause any loss of once to the finance companies. His intention had been by deceit to induce any person who was charged with the duty of seeing that the credit restrictions then current were observed to act in a way in which lie would not act if he had known the true facts, namely, not to prevent the advancing of large sums of money exceeding the limits allowed by law It, the time. The Court held that the said intention amounted to intend to defraud. (1) (1903) 1 ch.. 732. (2) (1960) 1 All. E. R. 260, 264, 266. 594 Hilbery, J., speaking for the court, pointed out the distinction between deceit and defraud and came to the conclusion that ,to defraud” is to deprive by deceit.” Adverting to the ar gument that the deprivation

must be something of value, i. e. economic loss, the learned judge observed “We have, however, come to the conclusion that this is too narrow at view. While, no doubt, in most

cases of an intention to defraud the intention is to cause an ec onomic loss’ there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that lie suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had lie not been deceived.”

On the basis of the said principle it was held that the accused by deceit induced the finance companies to advance moneys contrary to the credit restrictions and that he was guilty of the offence of forgery. This decision is therefore a clear authority for the position that the loss or, the injury caused to the person deceived need not be economic loss. Even a deprivation of a right without any economic consequences would be enough. This decision has not expressed any definite opinion on the question whether a benefit to the accused without a corresponding loss to the person deceived would amount to fraud. But it has incidentally touched upon that aspect. The learned judge again observed. “……………………………… This the appellant was doing in order that he might benefit by getting further loans.”

This may indicate that a benefit derived by the 595 person deceiving another may amount to an act to defraud that other. A full Bench of the Madras High Court , in Kotamraju Venkatrayadu v. Emperor (1) had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of it recognized High School that he was of good character land had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed : “Intending to defraud m eans, of  course, something more than deceiving.”

He illustrated this by the following example: “A tells B a lie and B believes him. B is deceived but it does

not follow that A intended to defraud B. But, as it seems to me, if A tells B a lie intending that B should do something which A conceives to be t o his own benefit or advantage, ‘and which, if done, would be to the loss or detriment of B, A intends to defraud B.”

The learned Chief justice indicated his line of thought, which has some bearing on the question now raised, by the following observations : “I may observe, however, in this connection that by s. 24 of the Code a person does a thing dishonestly who’ does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there

should be an intention to cause both. On the analogy of this definition, it might be said that either an intention

(1) (1905) I.L.R. 28 Mad. 99,96,97. 596 to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit, is an intent to defraud.”

But, he found in that case that both the elements were present. Benson,J., pointed out at p. 114 : “I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself’ by means of his’ deceit, but also by reason of the injury which must

necessarily result to the University and, through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its byelaws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of  Matriculation, when in fact, they have not fulfilled those conditions, for the value of its examinations is, depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefis of  Matriculation.” Boddam, J., agreed with the learned Chief justice and Benson, J. This decision accepts

the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second, the intention to expose some person either to actual injury or risk of possible injury but the learned judges were also inclined to hold on the analogy of the definition of “dishonestly” in s. 24 of the Code that intention to secure a or advantage to the deceiver satisfies the

second con- dition 597 The Calcutta High Court dealt with this question in Surendra Nath Ghose v. Emperor (1) There, the accused affixed his signature to a kabuliat which was not required by law to be attested by witnesses, after its execution and registration, below the names of the attestings witnesses but without putting a date or alleging actual presence at the time of its execution. The court held that such an act was not fraud within the first clause of s. 464. of the Penal Code inasmuch as it was not done dishonestly or fraudulently within the meaning of ss. 24 and 25 thereof. Mookerjee, J., defined the words “intention to defraud” thus:

“The expression, “intent to defraud” implies conduct coupled with intention to dece ive and thereby to injury in other words, “defraud” involves two conception s, namely, deceit and injury to the person

deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of  property.”

This view is in accord with the English decisions and that expressed by the Full Bench of the Madras High Court. This decision does not throw any light on the other question whether advantage to the deceiver without a corresponding loss to the deceived would satisfy the second ingredient of the expression “intent to defraud”.

A division Bench of the Bombay High Court in Sanjiv Ratnappa v. Emperor (2) had also occasion to consider the scope of the expression “fraudulently” in s. 464 of the Penal Code. The court held that for

an act to be fraudulent there must be some advantage on the one side with a corresponding loss on the other. Adverting to the argument that an advantage secured by the deceiver would constitute fraud Broomfield, J., observed thus “I think in view of the Bombay decisions to which I have referred we must hold that that

(1) (1910) I.T..R. 38 Cal. 75, 89-90. (2) A.I.R. 1932 Bom. 545, 550. 598 is an essential ingredient in the definition of forgery. In the great majority of cases, the point is not very material…………… But there many occasionally be a case in which the element of loss or injury is absent and I think the present is such a case.”

This decision therefore does not accept the view of White C. J., of the Madras High Court. A Division Bench of the Lahore High Court,, in Emperor v. Abdul had also expressed its view on the meaning of the word “fraudulently.” The learned Judges accepted Stephen’s definition but proceeded to observe as follows “It may be noted in this connection that the word “‘injury” as defined in s. 44 , Penal Code, is very wide as denoting “any harm whatever, illegally caused to any person, in body, mind, reputation or property.”

The learned judges were willing to assume that in almost every case an advantage to one would result in an injury to the other in the widest sense indicated by s. 44 of the Penal Code.

The other decided case cited at the Bar accept the necessity for the combination of a deceit by one and injury to other constitute an act to defraud and therefore, it is not necessary to multiply citations. No other decision cited-at the Bar throws any light on the further question, namely, whether an advantage secured to the deceiver without a corresponding loss to the deceived would satisfy the second condition laid down by the decisions. To summarize : the expression “‘defraud” inoslves two elements, namely, deceit and injury to the

person deceived. injury is something other than (1) A.I.R. 1944 Lah. 380,382. 599 economic loss that is’, deprivation of property, whether movable or immovable, or of money, and it will

include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Now let us apply the said principles to the facts of the present case. Certainly, Dr. Vimla was guilty of  deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said , deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term. In the result, we allow the appeal and hold that the appellant was not guilty of the offence under 600

ss. 467 and 468 of the Indian Penal Code. The conviction and sentence passed on her are set aside. Fine, if paid, is directed to be refunded to the appellant, Appeal allowed.  



Posted in Uncategorized Tagged " indian penal code, "false document", 1860, 1963, 1987, 1989, 2008, 467, 468 ipc, 468 of indian penal code, abd sale, ayyangar, criminal law,forgery, framing of charge, G.S.Bansal vs The Delhi Administration on 21 March, Haryana Sta November, hire purchase, indian penal code 1860,ingredients of fraud, kaviraj, mens rea, Ministry ... on 1 September, nal August, Section 24 in The Indian Penal Code, Section 463 in The Indian Penal Code, Section 464 in The Indian Penal Code, vs Ordnance Factory Board, Sikander Lal Jain vs State on 14 August, special appeal, The Indian Penal Code Leave a comment April 16, 2012 A Case on outraging the modesty of a woman & Rape.  A Case on outraging the modesty of a woman & Rape.

Supreme Court of India Raju Pandurang Mahale vs State Of Maharashtra And Anr. on 11 February, 2004 Equivalent citations: AIR 2004 SC 1677, 2004 CriLJ 1441, JT 2004 (2) SC 425 Author: A Pasayat Bench: D Raju, A Pasayat JUDGMENT Arijit Pasayat, J. 1. Appellant calls in question legality of the conviction recorded in terms of Sections 342 and 354 read with Section 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) by the Trial Court, and affirmed in

appeal by the impugned judgment by learned Single Judge of the Bombay High Court, Aurangabad Bench. Two appeals were disposed of by a common judgment. Criminal Appeal No. 3 of 98 was filed by the present appellant along with one Pankaj, while the connected Criminal Appeal No. 50/98 was filed by Raju @ Rajesh S. Kopekar. 2. Four accused persons faced trial. The appellants before the High Court were present appellant Raju Pandurang Mahale (A-1), Gautam (A-2), Pankaj (A-3) and Rajesh S. Kopekar (A-4). A-1 to A-4 were convicted for offences punishable under Sections 376(2)(g) IPC and each of A-1, A-3 and A-4 was sentenced to suffer RI for 10 years and to pay fine of Rs. 500/- with default stipulation; but Gautam (A-2) was awarded 2 years RI. Additionally, A-1, A-2 and A-4 were found guilty for offences punishable under Sections 342 read with Section 34 IPC. Gautam (A-2) did not prefer any appeal questioning his conviction. A-3 alone was convicted for offence punishable under Section 292 IPC, while A-4 was

convicted for offence punishable under Section 323 IPC. A-1, A-3 and A-4 were convicted for offences punishable under Sections 354 read withe Section 34 IPC. For offences relatable to Section 342 read with Section 34 IPC, six months RI and for the offence punishable under Section 354 IPC one year custodial sentence was imposed. 3. The High Court by the impugned judgment set aside the conviction and sentences of A-1 and A-3 for the offences punishable under Section 376(2)(g). So far as the appeal filed by A-4 is concerned, he was convicted for the offence punishable under Section 376 IPC, though his conviction in terms of Section 376(2)(g) was set aside. The conviction of A-1 and A-2 and A-4 for the offences punishable under Sections 342 read with Section 34 IPC, and the conviction of A-1, A-3 and A-4 for the offences punishable under Section 354 read with Section 34 IPC was also maintained with the sentence imposed. Conviction of A-4 in terms of Section 323 IPC was maintained. In essence so far as the appellant is concerned, his conviction for the offence punishable under Section 342 read with Section 34 IPC and Section 354 read with Section 34 IPC; was maintained as noted above. 4. Prosecution version as unfolded during trial is as follows: The alleged occurrence took place on 12^th and 13^th January, 1996. Husband of the prosecutrix (PW5), at the relevant time, was undergoing imprisonment for life after his conviction in a murder case. The prosecutrix, along with a daughter of two years age, was residing with her sister (PW-6). Accused No. 4  – Raju @ Rajesh s/o Sudakar Kopekar and accused No. 1  – Raju s/o Pandurang Mahale were friends of the husband of prosecutrix. It was for this reason that the prosecutrix was known to them. Both these accused persons were on visiting terms with the prosecutrix and her husband used to go to their house. Raju @ Rajesh S. Kopekar (accused No. 4) was working in Railways and was required to go out of station sometimes. The prosecutrix, on request, by him, used to stay with his wife during his absence in connection with his duties. 5. The incident occurred during the midnight of 12.1.1996 and 13.1.1996. At about 9.30 p.m. of  12.1.1996, appellant Raju Pandurang Mahale came to the house of the prosecutrix and told her that Raju @ Rajesh S. Kopekar (accused No. 4) had gone for night duty, and that his wife was alone at home. She was also told that wife of Raju (A-4) had called her to stay with her. The prosecutrix was reluctant to go to the house of Raju (A-4). She, however, relented on persistence of appellant Raju (A-1). She agreed to go, also for the reason that earlier, appellant Raju had taken her daughter and she had been left at the house of Raju @ Rajesh S. Kopekar (A-4) by appellant Raju.

6. On reaching the house of Raju @ Rajesh S. Kopekar (A-4), the prosecutrix found her daughter sleeping on a cot in the house. She, however, did not find the wife of Raju @ Rajesh S. Kopekar (A-4) at home. On the contrary, Raju @ Rajesh S. Kopekar (A-4), who was reported to have gone on duty, was very much present there. On questioning by prosecutrix, as to why she had been called by sending misleading information, Raju @ Rajesh S. Kopekar (A-4) stated that he had wanted her to come to his house for company. Gautam Suresh Shejwal (A-2), a friend of Raju @ Rajesh S. Kopekar (A-4) was also sitting in the house. He went outside the house and closed the door from outside, forcing the prosecutrix to remain in the house with Raju @ Rajesh S. Kopekar (A-4) along with appellant Raju s/o Pandurang Mahale and her two years old daughter who was sleeping on the cot. Appellant Raju s/o Pandurang Mahale brought liquor bottle and liquor was consumed by him and Raju @ Rajesh S. Kopekar (A-4). Thereafter, both these accused persons assaulted the prosecutrix and forced her to consume liquor. Soon she experienced giddiness giddiness and lost her balance. She was raped, thereafter, by Raju @ Rajesh S. Kopekar (A4). When the prosecutrix regained consciousness, she found Raju @ Rajesh S. Kopekar (A-4) was lying on her person and Pankaj Ganpat Avhad (A-3) was in the room. She alleged that Pankaj Ganpat Avhad had taken her nude photographs. In the morning, the prosecutrix was threatened not to disclose the incident to anybody and was asked to go home. The prosecutrix went to her sister’s house and narrated

incident to her sister (PW-6). Thereafter, they went to the police station and lodged the report. Investigation was undertaken and charge sheet filed. 7. The Trial Court and the High Court accepted the evidence of the victim prosecutrix to be cogent and taking note of the additional factors brought on record made the conviction and awarded the sentence as aforenoted. 8. In support of the appeal, learned counsel for the appellant submitted that the offences under Section 342 and Section 354 IPC were not made out, so far as he is concerned. It was submitted that the role attributed to the appellant does not in any manner establish existence of ingredients necessary to constitute offence punishable under Sections 342 and 354 IPC. He pointed out that the locking of the door from outside according to prosecution prosecution was done by A-2 in the house of A-4. The appellant had not poured liquor to the mouth of o f the prosecutrix as victim herself said that she was forcibly made to drink liquor by A-4. The High Court proceeded on the basis, as if, the appellant and A-4 forced her to take liquor. 9. In response, learned counsel for the State submitted that evidence has been analysed by both the Trial Court and the High Court in great detail. The role attributed to the appellant by the victim by the victim is very clear and in any event Section 34 was pressed into service to show that he shared the

common intention regarding regarding commission of the alleged offences. That being so, the conviction and the sentence as awarded do not need any interference. 10. The evidence on record clearly establishes that the appellant brought the victim to the house of A-4 on false pretext and made it compulsory for her to go by earlier taking away her daughter to the house of A-4. She was confined with A-4 and the appellant,when room was locked from outside by A-2. It was the appellant who brought the liquor which the victim was made to drink. She was forcibly disrobed by A-4 in the presence of the appellant. Thereafter A-4 raped her and A-2 took her nude photographs while she was being sexually ravished by A-4. Section 342 provides the punishment for wrongful confinement. It is established by the evidence on record that the victim was taken to A- 4′s place by the appellant in the night of date of occurrence and she was able to come out of the confinement on the next day. Wrongful confinement is defined in Section 340. As observed by this Court Shyam Lal Sharma and Anr. v. The State of Madhya Pradesh , where a person is wrongfully restrained in such a manner as to prevent that person from proceeding beyond certain circumscribed limits, he is wrongfully confined within the meaning of this Section. The essential ingredients of the offence “wrongful confinement” are that the

accused should have wrongfully confined the complainant and such restraint was to prevent the complainant from proceeding beyond certain circumscribed limits beyond which he/she has a right to proceed. The factual scenario clearly establishes commission commission by the appellant as well of the offence punishable under Section 342 IPC. 11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) That the assault must be on a woman. (b) That the accused must have used criminal force on her. (c) That the criminal force must have been used on the woman intending thereby to outrage her modesty. 12. What constitutes an outrage to female modesty is nowhere defined. The essence of  a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be

outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The Shorter Oxford

Dictionary (Third Edn.) defines the wo rd ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast, Scrupulously chast.”

13. Modesty is defined as the quality of being modest; and in r elation to woman, “womanly propriety of 

behavior; scrupulous chastity of thought, speech and conduct.” It is the reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passion upon her person but that he intended to do so at all events, and notwithstanding notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was  just going to to have sexual connection with with her. 14. Webster’s Third New International Dictionary of t he English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the

Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.

15. In State of Punjab v. Major Singh a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’

which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of  mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of  mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this court in Major Singh’s case (supra) the ultimate test for

ascertaining whether whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. .

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminine decency. It is further to

be noted that Section 34 has been rightly pressed into service in the case to fasten guilt on the accusedappellant, for the active assistance he rendered and the role played by him, at all times sharing the common intention with A-4 and A-2 as well, till they completed effectively the crime of which the others were also found guilty. 16. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of  the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of  Punjab , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 17. The Section does not say “the common intention of all” nor does it say “and intention common to all”. Under the provisions of Section 34 t he essence of the liability is to be found in the existence of a

common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of 

a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh . Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 18. Looked at from any angle the conclusions of the Trial Court and the High Court in convicting the appellant do not suffer from any infirmity to warrant interference in exercise of the powers under Article 136 of the Constitution of India, 1950. The sentences imposed by no stretch of imagination can be said to be on the higher side. On the contrary, backgrounds facts of the case show that lenient sentences were imposed. The Supreme Court on Rash & Grossly Negligent.

Supreme Court of India Rathnashalvan vs State Of Karnataka on 11 January, 2007

Author: D A Pasayat Bench: D A Pasayat, S Kapadia CASE NO.: Appeal (crl.) 45 of 2007 PETITIONER: Rathnashalvan RESPONDENT: State of Karnataka DATE OF JUDGMENT: 11/01/2007 BENCH: DR. Arijit Pasayat & S.H. Kapadia JUDGMENT: JUDGMENT

DR. ARIJIT PASAYAT, J. : 1. Leave granted. 2. Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Karnataka High Court dismissing the criminal revision filed by the appellant questioning correctness of  the judgment of learned Second Additional Civil Judge (Jr. Dn.) & JMFC, Hassan. The appellant was convicted for offences punishable under Sections 304-A, 279 and 337 of the Indian Penal Code, 1860 (in short the `IPC’). He was sentenced to pay a fine of Rs. 700/- for the offence punishable under Section

279 IPC, Rs. 300/- for the offence punishable under Section 337 IPC and simple imprisonment for six months for the offence punishable under Section 304-A IPC. Default stipulations were provided in respect of the fines imposed. An appeal was preferred which was partially allowed by learned Additional Sessions Judge, Hassan. The conviction in terms of Section 279 was set aside. However, in respect of  Sections 337 and 304-A IPC the conviction was maintained along with the sentences imposed. In the revision petition filed before the High Court the primary stand was that there was no rash and negligence involved because the vehicle capsized because of mechanical failure. The High Court did not find any substance and dismissed the revision petition. 3. The factual position in a nutshell is as follows : On 23.7.1996 at about 11 a.m. the revision petitioner/accused being the driver of a lorry bearing No. KL13-4363, was proceeding on Hassan-Arsikere Road, near Sankenahalli gate and drove the same in a rash and negligent manner and dashed against a tree, which was by the side of the road and caused death of Shivanna, Bililyamma, Basheer and caused bleeding injuries to C.Ws. 3 to 5, who were travelling in the said lorry sitting in the cabin. Two of them died at the spot and the third person died on the way to the hospital. C.Ws. 3 to 5 sustained grievous injuries. Therefore, the accused was charge-sheeted for offences punishable under Sections 279, 337 and 304-A of IPC. The trial court took congnizance of the offence and registered the case. The prosecution in order to prove the guilt of the accused examined 10 witnesses as PWs 1 to 10 on its behalf and closed its side. The accused denied the incriminating evidence, which was appearing against him, but he did not choose to examine any witness on his behalf. 4. The stand taken before the High Court was reiterated in this appeal. 5. Learned counsel for the State on the other hand supported the order passed by the courts below.

6. Coming to the question whether there was any rash and negligence involved, evidence of the RTO (PW-10) is relevant. He has clearly stated that the accident did not occur on account of mechanical defects. The evidence of PWs. 1, 2 and 6 who were eye-witnesses shows that the vehicle was being driven at a very high speed. Significantly some of the PWs. were travelling in a lorry. PW-6 had stated that the vehicle was coming at a very high speed and that the road was quite wide and there was no traffic at the time of accident. It is to be noticed that the evidence of the witnesses clearly shows that the vehicle against a tree and the branches of the tree fell on it. From the evidence of PW-6 it appears that though it was rainy season but there was no rain at the relevant point of time. 7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is direction at offences outside the range of  Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 302-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused’s conduct amounted to culpable rashness or negligence depends directly on the question as to

what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. 8. As noted above, “Reshness” consists in hazarding a dangerous o r wanton act with the knowledge that

it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted. 9. The distinction has been very aptly pointed out by Holloway J. in these words :

“Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may

follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty o f Circumspection.” (See In re : Nidamorti Nagabhusanam 7 Mad. H.C.R.

119) 10. When the factual scenario is considered in the light of evidence of the eye witnesses the inevitable conclusion is that the courts below have rightly found the accused guilty. The sentence of six months’

simple imprisonment and the fine imposed does not in any way appear to be irrational. 11. Vehicular accidents resulting in deaths and injuries is spiraling. 12. The Editorial under the heading “Road Traffic Injuries & fatalities and India – a modern epidemic” in

Indian J. Med. Res.123, January 2006 contains some interesting observations. The relevant portions read as follows : “The United Nations General Assembly adopted a resolution on road safety on October 26, 2005 which

invites Member States to implement the recommendations of the World Report on Road Traffic Injury Prevention; to participate in the first United Nations Global Road Safety Week; and to recognize the third Sunday in November of every year as the World Day of Remembrance for Road Traffic Victims’.

This resolution follows the publication of The World Report on Road Traffic Injury Prevention by the World Health Organization in 2004. This report highlights the fact that all over the world working age people are more likely to suffer hospitalization, permanent disability and death due to road traffic injuries than most other diseases. The situation in India is not very different. About 82,000 persons were killed on Indian roads in 2002. Official statistics regarding serious injuries are not reliable as they underestimate the actual number, but it is estimated that the number of people hospitalized may be 15-20 times the number killed. In a do-nothing scenario, it is possible that India will have 1,20,000-1,30,000 road traffic fatalities in the year 2008 and possibly 1,50,000  – 1,75,000 in 2015. Our vision should aim at reducing the fatalities to less than 1,00,000 in the short term (2008) and less than 70,000 in the long term (2015). xxx xxx xxx

Safety measures for the near future xxx xxx xxx Motor vehicle occupants : (i) Enforcement of seatbelt use laws countrywide; (ii) restricting travel in front seat of cars by children has the potential of reducing injuries dramatically; and (iii) bus and truck occupant injuries, fatalities; and injuries caused to other road users can be reduced significantly by enforcing strict observance of speed limit regulation on highways. Ensuring that bus time tables and truck movement schedules make it possible for drivers to observe speed limits with ease. Random speed checking on highways would help ensure such measures. xxx xxx xxx Road safety strategies – Long term Traffic calming and speed control; (i) Aim at implementing speed control and traffic claming measures in all urban areas and at appropriate locations on rural highways by altering road design, vehicle monitoring through intelligent transport systems, and vehicle design by the year 2015. This measure is likely to give us the maximum savings in terms of lives and serious injuries; and (ii) segregated lanes for vulnerable road users and buses in urban areas. Non-motorized transport and buses must be provided segregated lanes on all major arterial roads in urban areas. India specific designs need to be developed and phase wise implementation plans drawn up for all cities. xxx xxx xxx Vehicle safely: (i) All vehicles sold in India should meet international crashworthiness standards by 2010; (ii) all buses and trucks should meet pedestrian impact standard by 2010; (iii) all urban buses to have low floors and automatic closing doors; (iv) crashworthiness standards must be developed for all indigenous vehicles by 2010 and implemented by 2012; (v) installation of Intelligent Transport Systems (ITS) and other modern safety devices for assisting and controlling drivers; and (vi) driving under the influence of  alcohol and other drugs. A long term strategy to reduce drinking and driving incidence to less than 10 per cent of all crashes needs to be drawn up for the next 10 yrs. Sensitization of the public to the extent to the problem. Institution of random roadblocks and checking on urban roads and rural highways. Ignition interlock on cars.”

13. In “Global Road Safety” certain revealing data have also been provided. They read as follows :

“THE COMING PLAGUE OF ROAD TRAFFIC INJURIES :

A PREVENTABLE BURDEN FOR RICH AND POOR COUNTRIES”. Almost 1.2. Million people are killed each year and 20-50 million are injured or disabled, most people are unaware that road traffic injuries are a leading cause of death and disability. In developing countries, death rates from vehicle crashes are rising, and disproportionately high in relation to the number of crashes. According to a report published in 2000 Developing and transitional countries cumulatively represent over 85 per cent of all road traffic deaths Kenya has nearly 2,000 fatalities per 10,000 crashes. Vietnam has over 3,000 fatalities per 10,000 crashes. 44% of all road traffic deaths occur in the Asia/Pacific area, which only has 16% of the total number of  motor vehicles. At 71,495 and 59,927 total deaths, China and India, respectively, had the highest number of road fatalities in the world in 1995.Pedestrian deaths represent 62% of all traffic fatalities in Lebanon. In most developing countries vulnerable road users, including pedestrians, bicycle and motor cycle riders, account for the majority of  all fatalities. Eastern European countries represent 6% of motor vehicles, but 11% of crash fatalities worldwide. The Latin America/Caribbean region has the second highest crash costs behind Asia. 14. As developing countries increase vehicle use, road traffic injuries and expected to become the third leading cause of death and disability worldwide by 2020. In developing countries, each vehicle is much more lethal than the vehicles in developed countries, because it most frequently takes the lives not of  vehicle occupants, but of vulnerable road users : pedestrians, cyclists. Many developing countries are increasing the rate of motorized vehicle use at up to 18% per year. In India, for example, there has been a 23% increase in the number of vehicles from 1990-1999 and a 60- fold increase is predicted by 2050.

15. The human toll is tragic. Survivors and family members are affected not only by an immediate death or disability, but sometimes a lifetime of psychological and physical suffering. Crashes often result in orphans, and some victims, as young as infants, spend the rest of their lives in medical facilities. ECONOMIC IMPACT 16. In addition to the devastating human toll, the economic impact of road crashes is also enormous. Many of those injured or killed are wage earners; leaving families destitute and without means of  support. Loss of wages, property damage, and other factors affected by road traffic crashes represented 4.6% of the gross national product of the United States in 1994. In developing countries, road traffic crashes represent 3-5% of the GNP. The estimated annual cost of road traffic crashes in developing countries exceeds $ 100 billion (US). This amounts to nearly double the total combined development assistance these countries receive every year from bilateral and multi-lateral government organizations. Globally, the estimated annual costs of road crashes are 500 billion (US). THIS PROBLEM IS PREVENTABLE 17. We have the tools needed to combat this epidemic. In the developed nations, proven methods such as enforcement of laws regarding driving under the influence of alcohol or drugs, reducing speed limits and requiring seat belts and restraints have shown significant reduction in traffic fatalities. Road design and road environment, vehicle design, and road safety standards are also strategies that successfully address traffic safety. For maximum impact for RTI’s a systems approach with multiple, scientifically

proven prevention techniques must be employed. Education alone has been shown to be less effective, and often ineffective. 18. Proven interventions for developed countries require research, modification, and testing for developing countries. For example, developing countries face poorly designed and maintained roadways, unsafe vehicles, drivers under the influence of drugs or alcohol, lack of national policies, and inadequate enforcement. Success will require significant new resources supported by sustained political commitment.”

19. The inevitable conclusion is that the appeal is sans merit and deserves dismissal which we direct.

Bharat Chugh Supreme Court Advocate/Legal Consultant/Writer & Speaker on issues relating to Law, Justice & Crime.

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