2017 SCC Vol. 1 January 28, 2017 Part 4

Civil Procedure Code, 1908 — Or. 37 (as amended in 1976) — Leave to defend: Leave to defend can be granted unconditionally to defendant in cases where (i) the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, and ordinarily where (ii) the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence. Further, leave to defend can be granted subject to conditions as to time or mode of trial, as well as payment into court or furnishing security in cases where (i) despite the defendant raising triable issues, a doubt is left with the trial Judge about the defendant’s good faith, or the genuineness of the triable issues (ii) the defendant raises a defence which is plausible but improbable. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. Further, leave to defend should be refused when the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious. Further, when any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. [IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568]

Civil Procedure Code, 1908 — Or. 39 R. 2-A — Breach of order of court: It is not open to parties to the lis or to any third party to determine validity of an order passed by court. Parties who consider an order passed by a court as voidable or non est, must approach court of competent jurisdiction to have said order set aside on such grounds, as available in law. Order of court has to be complied with and sale held in violation of said order has to be set aside. [Robust Hotels (P) Ltd. v. EIH Ltd., (2017) 1 SCC 622]

Contract Act, 1872 — S. 63 — Waiver of right — Disallowance of, when such waiver affects public interest: When waiver is spoken of in the realm of a contract, S. 63 of the Contract Act, 1872 governs. Further, if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. Moreover, if there is any element of public interest involved the court steps in to thwart any such waiver which may be contrary to such public interest. [All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487]

Criminal Procedure Code, 1973 — Ss. 156(3), 154, 173 and 482: As challenge to order under S. 156(3) CrPC directing registration of FIR and submission of report after investigation, under S. 482 CrPC or Art. 227 of Constitution of India was premature, High Court rightly dismissed writ petitions challenging order passed under S. 156(3) CrPC. [HDFC Securities Ltd. v. State of Maharashtra, (2017) 1 SCC 640]

Drugs, Cosmetics, Medical Practice & Practitioners and Public Health — Drug, alcohol and substance abuse: For curbing and elimination of drug, alcohol and substance abuse, particularly curbing increasing use and abuse of substances in children, mostly adolescent children and protecting, directions issued in public interest. [Bachpan Bachao Andolan v. Union of India, (2017) 1 SCC 653]

Income Tax Act, 1961 — S. 10(19-A) — AY 1978-79 — Exemptions: When part of residential palace of ruler of erstwhile Princely State and his family members is let out, rent received from said let out property, not exigible to tax in hands of assessee and is covered by the exemption. [Bhim Singh v. CIT], (2017) 1 SCC 554]

Municipalities — M.P. Municipal Corporation Act, 1956 (23 of 1956) — S. 305 — Widening of road for Bus Rapid Transit System Corridor (BRTS Corridor): For widening of road for Bus Rapid Transit System Corridor (BRTS Corridor) primary statutory mandate is for Corporation to act for removal of that part of building which is projecting into regular line of public street or some portion of projecting part. Such removal is contemplated in all exigencies and for all projecting structures. Action taken by Corporation under S. 305, 1956 Act not interfered with by High Court, thus, upheld. [Ravindra Ramchandra Waghmare v. Indore Municipal Corpn., (2017) 1 SCC 667]

Penal Code, 1860 — Ss. 302, 34 and 498-A — Beating and burning of Wife: In this case father and brother of deceased wife (PWs 3 and 4) apparently compromised with in-laws (accused murderers) to nullify effect of dying declaration but dying declaration duly recorded by PW 11 (Magistrate) and doctor certifyied about fitness to deceased to give said declaration. Though deceased suffered 100% burnt injuries, High Court reversed acquittal and convicted appellants on basis of said dying declaration. Said order of High Court, valid and warranted, hence not interfered with. Reasons given by trial court for discarding the dying declaration were not correct. [Ramesh v. State of Haryana, (2017) 1 SCC 529]

Registration Act, 1908 — Ss. 47 and 17: Transfer of property takes place/title passes when conveyance is compulsorily registrable, held, only upon registration. Conveyance deed for sale executed before Court order but registration of said deed done after passing of interim order prohibiting disposal of property concerned, amounted to contempt of court. Sale however not invalidated for peculiar reasons. [Ghanshyam Sarda v. J.K. Jute Mills Co. Ltd., (2017) 1 SCC 599]

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