Case BriefsHigh Courts

Kerala High Court: The question before a 2-Judge Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., was to determine the jurisdiction of Court, whether Court can entertain a matter related to guardianship of a minor or not where the expression “the place where the minor ordinarily resides” in Section 9(1) of the Guardians and Wards Act, 1890 was to be interpreted.

The facts leading to the instant petition are that the appellant (mother of minor) filed a petition in family court for the custody of her minor child. The respondent (father of the minor) contested the above petition by challenging the jurisdiction of Court on grounds that by virtue of Section 9(1) of the Act Court had no jurisdiction to try this matter as the correct jurisdiction would be where the minor ordinarily resides. Court thereby ordered appellant to file the petition before the court having jurisdiction. This order of the court is challenged before the High Court in the instant petition. The High Court referred case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 where Apex Court held that test to determine the jurisdiction of Court to entertain the application of guardianship of minor is the place of ordinary residence of a minor. Appellant pleaded that under Section 6 of Hindu Minority and Guardianship Act, 1956 custody of a minor who is below five years of age is with the mother and since minor was less than five years old appellant would be the natural guardian of the minor thus her residence would be the ordinary residence of minor. Court rejected this pleading and cleared that it is the ordinary residence of the minor which is going to decide the jurisdiction of the Court and not the residence of natural guardian.

Therefore, Court found no error in the finding of lower court that it had no jurisdiction to try this matter as minor was not ordinarily residing within its jurisdiction. [Divya J. Nair v. S.K. Sreekanth,2018 SCC OnLine Ker 3375, dated 12-09-2018]

Case BriefsForeign Courts

Constitutional Court of South Africa: A 10-Judge Bench comprising of CJ Mogoeng and Cachalia, Dlodlo, Goliath, Petse, AJ., Froneman, Jafta, Khampepe, Madlanga, and Theron, JJ., dealt with three appeals together having similar issues.

Facts of the case are that the appellants had been imposed with life sentences under the Criminal Law Amendment Act, 1997 (Minimum Sentences Act). The appellants pleaded that the sentence pronounced by High Court were unfair as it had no power to sentence appellant under the Minimum Sentences Act without making the accused aware of its potential application from the beginning of the Trial i.e. the relevant provision to be mentioned in the charge-sheet.

This Court’s jurisdiction was challenged in this appeal to which the Court viewed that letting know of the charge with details to answer it is a constitutional matter and thus this Court had the jurisdiction to deal with this appeal. Further issue before this Court was whether the state failed adequately to inform the appellants of the minimum sentencing regime at relevant times. Appellants contended that right to fair trial guaranteed under Section 35 (3) of the Constitution was infringed as they were not informed of the application of Minimum Sentences Act and relevant provision of the Act was not mentioned in the charge sheet. Court referred case of S v. Ndlovu, (2017) ZACC 19  and observed that by virtue of this precedent it cannot be said that if accused is not informed of applicability of the Act the trial would be rendered unfair though the same had come in practice, that relevant section of the Act ought to be mentioned in the chargesheet. In case applicable section of the Act is not mentioned then it should be derived from the facts of the case if such omission renders the proceedings unfair or not. Therefore, all the applications for leave to appeal were dismissed. [MT v. State, Case CCT 122 of 17, decided on 03-09-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of M.K. Hanjura, J., allowed an application filed against the order dismissing the petitioner’s petition under Section 561-A of the CrPC, 1989 [Jammu & Kashmir]. The petitioner sought quashing of the dismissal order primarily on the ground that it was passed behind his back.

The main issue, in this case, was whether a criminal Court can recall or review its decision after the date of its delivery.

The Court applied the ratio laid down by the Hon’ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, wherein the Supreme Court had held that there is no power of review with the criminal court once the judgment has been rendered. However, 4 exceptions to this general rule were also laid down by the Supreme Court: first, if the judgment is pronounced without jurisdiction; second, if it is in violation of the principles of natural justice; third, if it has been pronounced without giving an opportunity of being heard to the party affected by it; and fourth, where the order is obtained by abuse of the process of the Court. In all these cases the High Court under its inherent jurisdiction can recall its judgment.

The Court held that the petitioner’s case was covered under the above exceptions i.e. the order was passed behind his back and he was not afforded an opportunity of being heard. Hence the impugned order was quashed and recalled by the Court. [Jalal-ud-Din Sofi v. State of J&K,2018 SCC OnLine J&K 519, order dated 24-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Kalyan Rai Surana, J. dismissed a revision petition filed under Section 115 CPC read with Article 226 of the Constitution against the order of Civil Judge whereby he returned the plaint filed by the petitioner for filing the same before appropriate court in Delhi.

The petitioner had filed a money suit against the respondent before Civil Judge, Kamrup, Gauhati. The action arose out of a written agency agreement between the parties. It is pertinent to note that the same agreement contained a clause that made all the claims arising out of or in relation to the agreement to be subject to jurisdiction of the courts at Delhi. Accordingly, the Civil Judge returned the plaint directing the petitioner to file the same before courts at Delhi. Aggrieved by the same, the petitioner filed the instant revision.

The High Court perused the agreement. The question before the  Court was ‘whether courts at Gauhati had jurisdiction to adjudicate the claim or whether the clause conferring jurisdiction to Delhi courts would act as an ouster of jurisdiction?’. On appreciation of the facts, the Court noted that all the transactions between the parties occurred within the territorial jurisdiction of courts both in Delhi and Gauhati. It was also noted that the present transaction for which the action was brought (security deposit clause) was not independent of the agreement between the parties subjecting all disputes to jurisdiction of Delhi courts. Reliance was placed in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32 to hold that notwithstanding where the agency agreement was to be performed, the existence of the jurisdiction clause makes intention of the parties very clear that they desire the disputes relating to the agreement to be settled by the Delhi courts. Accordingly, it was held that courts at Delhi would have jurisdiction to settle disputes between the parties. The revision petition was, thus, dismissed. [Pankaj Baid v. Bawa Masala Co.,2018 SCC OnLine Gau 908, dated 17-08-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: In this case, two revision petitions were disposed of together by a Single Judge Bench comprising of Anil Kshetarpal, J., where issues were identical.

This revision petition was filed against an order where application for rejection of plaint was dismissed. The Plaintiffs were alleged with not signing the documents of guarantee. The plaintiff had approached the Civil Court in the matter related to SARFAESI Act, 2002 where according to Section 17 of the Act any person affected is entitled to file an application before the Debt Recovery Tribunal (DRT). In pursuance of Section 34 of the Act which bars Civil Court’s jurisdiction in matters covered under SARFAESI Act, defendant i.e. Nationalized Bank pleaded that Civil Court had no jurisdiction. Trial Court referred the case of Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 where it was held that in cases of fraud, Civil Court does have jurisdiction.

This Court observed that the pleadings of the plaintiff suggests that the word fraud had been deliberately used so as to oust the jurisdiction of Debt Recovery Tribunal and in a decision of Madras High Court V.Thulasi v. Indian Overseas Bank, 2011 SCC OnLine Mad 670 it was held that where it is found that the word fraud has been deliberately used as a clever drafting in order to bring the suit before Civil Court such efforts will be repelled by the Court. High Court enabled the DRT by virtue of provisions of SARFAESI Act, 2002 to deal with the issue of whether the plaintiffs had stood guarantee to the loan received by the borrowers or not. Therefore, both the revision petitions were allowed and the matter will be taken up by the DRT. [State Bank of Patiala v. Satya Jyoti Rice Mills,2017 SCC OnLine P&H 4657, order dated 02-11-2017]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of S.C. Gupte, J., addressed a petition in which challenge was made to the order of University and College Tribunal, Mumbai whereby the respondents’ appeal against there termination of service was allowed.

The facts of the case were that, the petitioner being a trust used to run a physical education college, in which the respondents who had challenged the order of termination of services by the petitioners were the teachers. On enforcement of National Council for Teacher Education Act 1993 (NCTE), the Western Region Committee addressed a letter to the Registrar of University of Mumbai for recognition of institutions conducting physical education courses. The petitioner’s college was subjected to a show cause notice asking on why their college should be given recognition. Further, even after a reply being submitted on behalf of the petitioners they refused the status of being recognised.

Aggrieved by the same, the petitioners approached the appellate authority of the NCTE, Western Region for reconsideration. However, there was neither an order for stay on the refusal order of recognition nor were the petitioners permitted to start the college. Therefore, on recognising all the circumstances and non-recognition of the college due to which the college had to be shut down the termination orders were issued to the staff including Respondents.

The High Court on noting the facts and circumstances of the case, and in response to the Tribunal’s move of reinstating the terminated respondents, by relying on Section 92 of the Maharashtra Universities Act, held that the said section does not get attracted for seeking permission from the State Government as the subject of ‘recognition’ falls under the scope of Section 14 of the NCTE.  The court relied on State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 for the same. Hence, on the pertinent fact that no order of stay on the original order of refusal of recognition was issued, the college was not faulty in any manner and the order of Tribunal falling under serious error of jurisdiction was liable to be struck down. [President, Mulund Gymkhana v. Nagarkar Ajit Chandrakant,2018 SCC OnLine Bom 2122, Order dated 19-07-2018]

Case BriefsInternational Courts

International Court of Justice ( ICJ): On 13 June 2016, Equatorial Guinea instituted proceedings against France in ICJ with regard to a dispute concerning the immunity from criminal jurisdiction of the Vice-President of the Republic of Equatorial Guinea, Mr Teodoro Nguema Obiang Mangue, and the legal status of the building which “houses the Embassy of Equatorial Guinea”, located at 42 Avenue Foch in Paris. Equatorial Guinea sought to find the Court’s jurisdiction, first, on Article 35 of the United Nations Convention against Transnational Organized Crime (“Palermo Convention”) and, second, on Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol to the Vienna Convention”). France raised preliminary objections to the jurisdiction of the Court.

Mr Teodoro was fined and convicted for the offences like money laundering and misappropriation of public funds of his country of origin and investing it in France by a French Tribunal. As it was found on investigation that the building at 42 Avenue Foch was bought by him in pursuance of these offences, it was ordered to be attached. However, Equatorial Guinea claimed that the building to be part of its Diplomatic Mission in France. The attachment and his term were suspended after the Equatorial Guinea approached ICJ in this regard.

The Court observed that Equatorial Guinea’s claims based on principles of sovereign equality and non-intervention in the domestic affairs of other States (Article 4 of the Palermo Convention) were not valid as the Court considered that the said Article does not refer to the customary international rules, including State immunity, that is derived from sovereign equality but refers to the principle of sovereign equality itself. The Court gave the expression “sovereign equality” its ordinary meaning while observing that none of the provisions of the Palermo Convention relates expressly to the immunities of States and State officials. Further, it found this unrelated to the object and purpose of the Convention, set out in Article 1. Therefore, the Court concluded that the aspect of the dispute relating to the immunity of the Vice-President and the building from measures of constraint as State property did not concern the interpretation or application of the Palermo Convention and hence, Court lacked jurisdiction in relation to this aspect.

The Court rejected Equatorial Guinea’s claims based on the Palermo Convention concerning France’s alleged overextension of its criminal jurisdiction over predicate offences associated with the crime of money laundering.

Finally, Court noted that the Parties disagreed on the question whether the building constituted part of the premises of the Mission and was thus entitled to the treatment afforded for such premises under Article 22 of the Vienna Convention. Court found that this aspect of the dispute fell within the Vienna Convention and, consequently, it had jurisdiction under the Optional Protocol to the Vienna Convention to adjudge this aspect. [Immunities and Criminal Proceedings, Republic of Equatorial Guinea v. French Republic, No. 163, decided on 06-06-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.

The appellant, a secured creditor, invoked the jurisdiction of the District Magistrate under Section 14 of the SARFAESI Act. Against the order passed by the District Magistrate, the respondents preferred a challenge before the Debts Recovery Tribunal who declined to exercise jurisdiction, holding that an application under Section 17 of the Act is not maintainable before the Tribunal. Respondents filed an appeal before the learned Single Judge who by his impugned judgment, allowed the challenge and set aside the Order of the District Magistrate. Aggrieved by the Order of the Single Judge, the appellants were in appeal before the High Court.

The High Court, after considering the record, held that the learned Single Judge was not right in setting aside the Order of the DM. The Court, relying on its previous judgments, held that an appeal under Section 17 of the Act against an order passed by the DM, is maintainable before the Debts Recovery Tribunal. Thus, the Court set aside the orders of the learned Single Judge as well as the Debts Recovery Tribunal. The matter was accordingly sent back to the Tribunal for adjudication under Section 17 of the SARFAESI Act. [Authorized Officer v.  Prafulla Kumar Maheshwari; 2018 SCC OnLine MP 325; dated 01-05-2018]

Case BriefsHigh Courts

Madras High Court: A Division Judge Bench comprising of Indira Banerjee, CJ. and M. Sundar, J., allowed a writ appeal filed against the order of the learned Single Judge wherein he dismissed assessee’s challenge to the show-cause notice issued by principal Commissioner of Income Tax (revenue).

The assessee filed a return for the year 2012-2013 under Section 139 of Income Tax Act, 1961. Subsequently, the revenue issued a notice to the assessee under Section 148 of IT Act. The revenue wanted to open a re-assessment for the said year, on the grounds that the interest on loan amount shown to be paid to the bank was diverted by the assessee to its partners. The assessee challenged the re-assessment contending that the notice was issued after expiry of 2 years, which was not permissible.

The High Court considered the submissions made on behalf of the parties and perused Section 148 of the IT Act. The Court noted that read with Section 263(2), a notice of re-assessment under Section 148 could have been issued only within a time period of two years from the date of the scrutinization of the original assessment. Holding the said notice to be a show cause notice, the High Court observed, principles and grounds available for assailing a show cause notice are well settled. It the authority issuing the show cause notice lacks jurisdiction and if it is clearly barred by law, it renders the show cause notice invalid in law. The Court held that the show cause notice issued in this case was issued beyond the statutory period of two years which was clearly barred by law. Accordingly, the writ appeal was allowed. [Indira Industries v. CIT, 2018 SCC OnLine Mad 1850, dated 14-6-2018]

 

 

Case BriefsForeign Courts

Supreme Court of Canada: The Canadian Supreme Court Bench comprising of McLachlin C.J. and Abella, Moldaver, Karakatsania, Wagner, Gascon, Cote, Brown and Rowe JJ., allowed an appeal while discussing the scope and essence of ‘Judicial Review’.

The facts of the case were that the Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses (Appellant), had disfellowshipped Randy Wall (Respondent) due to his engagement in a sinful act for which he was considered to be insufficiently repentant.  The Appeal committee had confirmed the decision of the judicial committee. Further, the Respondent for the purpose of ‘Judicial review’ of his disfellowship placed an originating application on the basis of it being procedurally unfair before the Queen’s Bench.

Following the facts of the case, the primary issue that was to be answered through was of the jurisdiction of the court’s to review decisions of religious organizations.

While concluding the case, and allowing the appeal, the bench gave an understanding of the concept of ‘Judicial review’ by explaining that the private parties cannot seek ‘judicial review’ to solve disputes that may arise between them; rather, their claims must be founded on a valid cause of action, and also stated that the respondent had no cause of action neither did the ecclesiastical issues raised by him were justiciable.

Therefore, the Court, while stating that ‘Judicial Review’ is only available where there is an exercise of state authority and on an analysis of the stated issues which no where touched the ‘rule of law’ decided that “Courts may only interfere to address procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake and the claim is founded on a valid cause of action.” The appeal was allowed by quashing the originating application for judicial review as the matter in issue was outside the courts’ jurisdiction. [Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC OnLine Can SC 10: 2018 Supreme Court Cases 26, decided on 31-05-2018]

Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising S. Ravindra Bhat and Yogesh Khanna, JJ. set aside the decision of the Single Bench wherein it was that the Bangalore City Civil Court had no jurisdiction to hear the dispute related to arbitration between ISRO’s Antrix Corporation and Devas Multimedia.

An agreement was entered between Antrix Corporation and Devas Multimedia and further terminated unilaterally by Antrix due to ‘national security reasons.’ The agreement provided settlement of the dispute by arbitration and Devas accordingly pulled Antrix to International Court of Arbitration i.e. ‘ICC’. Antrix approached Bangalore Court to restrain Devas from proceeding with the arbitration and stop the International Court from going ahead with the matter. In 2015, the International Court ruling asked Antrix to pay USD 672 million to Devas for unlawful termination of the agreement. Subsequently, in September 2015, Devas moved to Delhi High Court for implementation of the arbitral award by seeking attachment of bank accounts of Antrix but the latter challenged its jurisdiction. Thereafter, it was held Antrix’s pleas in the court in Bangalore were not maintainable.

Antrix contended that under Section 9 of Arbitration and Conciliation once an application was made to a “court”, only that “court” would have jurisdiction over all subsequent applications made by either party under the Act, by virtue of Section 42. On the other hand, it was contended by Devas that Antrix had claimed substantially similar reliefs in its Section 11 petition before the Supreme Court which was dismissed, thereby leading to an issue estoppel. Allowing Antrix to re-agitate similar claims in a Section 9 petition before the City Civil Court would amount to forum shopping and an abuse of process of the courts.

However, contentions of Antrix were upheld against those of Devas. Section 42 precluded the jurisdiction and the Bangalore Court being first seized of Antrix’s petition would first decide Antrix’s initial plea against the arbitration proceedings. If it is found to be maintainable and bonafide, then Section 42 would be applicable, however, if not then that application would be treated as non-est and application in Delhi High Court would not be hit by Section 42. [Antrix Corpn. Ltd. v. Devas Multimedia Pvt. Ltd., 2018 SCC OnLine Del 9338, decided on 30-05-2018]

Case BriefsSupreme Court

Supreme Court: While addressing the ongoing issue relating to the discrepancy in preliminary examinations conducted for Uttar Pradesh Public Service Commission  2018, a vacation bench comprising of Deepak Gupta, J. speaking for himself and U.U. Lalit, J. set aside the judgment of Allahabad High Court wherein answers to certain questions were scrapped by the Court.

The answer key for the preliminary paper of General Studies-I, held for U.P. Public Service Commission 2018 to fill vacancies in Upper Subordinate Services in the State was challenged by certain candidates appearing for the exam, before the Allahabad HC. The High Court, while sustaining the challenge of the petitioners, struck down answers to four questions holding them to be incorrect. Aggrieved by the decision of the High Court, the respondent Commission approached the Apex Court.

The Supreme Court held such interference by the High Court untenable. It found that the answer key was published by the Commission after verification and suggestions of a 15-member and 18-member expert committees. Further, the answer key was examined by a 26-member expert committee on receiving as many as 926 objections by the candidates who appeared for the exam. The Hon’ble Bench observed the law to be well settled regarding the extent and power of the Court to interfere in academic matters. Referring to its earlier decisions in Kanpur University v. Samir Gupta, (1983) 4 SCC 309, and Ranvijay Singh v. State of U.P., (2018) 2 SCC 357, the Hon’ble Court observed, the State Government should devise a system for moderating answers key furnished by the paper setters. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain such pleas. Judges cannot take on the role of academic experts and no interference is permissible unless the candidate demonstrates that the key answers are patently wrong on the face of it. Noting the fact that the answer key was published after moderation by two expert committees, the Court held that the Allahabad High Court transgressed its jurisdiction in setting aside the decision of experts in the field. Accordingly, the impugned judgment was reversed. [U.P. Public Service Commission v. Rahul Singh,2018 SCC OnLine SC 609, decided 14-6-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Single Judge Bench comprising of Tarlok Singh Chauhan, J., addressed a very unusual petition in which the court exercised its “parens-patriae” jurisdiction.

In accordance to the facts of the case, petitioner is said to have requested her parents to marry “L” who is a facebook friend of the petitioner/ “K”, but after several attempts also petitioner’s parents did not agree for the marriage and instead they lodged a complaint against “L” under Sections 363, 366 376  IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. Further the petitioner was handed over to her parents when she had claimed to have married “L” but later the petitioner came back to “L’s” house.

On filing the instant petition, the petitioner had sought reliefs on not being restrained by her parents or the police from living in her husband’s house or from any kind of harassment and also provision of police protection.

However, the Court had earlier asked for a status report in which it was seen that the petitioner is happily living with “L’s” parents and is being treated well by them. On looking at this report the Court directed that no authority shall remove the petitioner from such custody without the leave of this Court.

Therefore, the Hon’ble High Court, exercised “parens-patriae” jurisdiction to secure the welfare of the minor by taking instance from the Supreme Court case of Lata Singh v. State of U.P., (2006) 5 SCC 475 and proposing to the petitioner to live at Balika Ashram till the time she attains the age of majority and thereby, she will be free to go anywhere, marry anyone and love anyone she likes on reaching the age of majority, till that time no authority or person shall have the permission of the Court to take the petitioner from the Balika Ashram. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, dated 12-04-2018]

Legislation UpdatesStatutes/Bills/Ordinances

The Government on May 3 published an Ordinance in the Gazette of India which made major changes to the Commercial Court structure in India. These courts were set up below the District Judge level, keeping in mind the increasing number of commercial disputes with a growing economy, and to bring about a speedy resolution of conflict, to showcase India as a lucrative destination for foreign investment. This ordinance sought to amend the Commercial Courts, Commercial Division and the Commercial Appellate Division in High Courts Act of 2015 (the Act).

The amendment made the following important changes to the Act:

1. Addition of the phrase “Commercial Appellate Courts” to the long title of the Act, and prescribing “Commercial Courts Act, 2015” as the short title.

2. In S. 2(i) of the Act, ‘specified value’ was lowered from amounts exceeding One crore rupees to amounts exceeding Three lakh rupees, substantially increasing the ambit of the courts’ jurisdiction.

3. In the High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, which exercise ordinary original civil jurisdiction in respect of territories of the cities of Mumbai, Delhi, Kolkata, Chennai and the State of Himachal Pradesh, the State government, in consultation with the respective High Court, shall constitute Commercial Courts at District Judge Level, and also specify the pecuniary value for these courts, which shall be greater than 3 lakhs but less than the pecuniary value of the jurisdiction of the District Court.

4. Where the High Courts do not exercise ordinary original civil jurisdiction, the State government may, in consultation with the respective High Court, establish Commercial Appellate Courts at the District Judge level, to hear appeals against judgments passed by the Commercial Courts below the District Judge level.

5. Insertion of Chapter IIIA to the Act which mandates, in suits not contemplating any urgent interim relief, pre-institution mediation, the manner and procedure of which is to be prescribed by the Central Government. Such a suit shall not be instituted till the remedy of mediation has been exhausted.

Ministry of Law and Justice

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Amit Sthalekar, J. ordered the petitioner (wife of a retired government servant) to vacate the government quarter occupied by her unathorisedly even after retirement of her husband who was a government servant.

The petitioner was unauthorisedly occupying the government quarter in question which was allotted to her husband when he was in government service. The husband of the petitioner had retired from government service twelve years ago but still the petitioner continued to occupy the quarters. Learned counsel for the petitioner submitted that the respondents be restrained from compelling the petitioner from vacating the said quarters in view of the order of the State Women Commission.

The High Court was of the opinion that the submission of the counsel for the petitioner was misconceived. The Court held that the State Women Commission had absolutely no jurisdiction to interfere in the service matters of an employee which are governed by statutory rules. Petitioner’s husband had retired from service twelve years ago; the petitioner continued to occupy the said quarters in wholly illegal and unauthorized manner. Accordingly, the petitioner was ordered to vacate the government quarter within fifteen days. [Asha Rai v. Purvanchal Vidyut Vitran BLW, 2018 SCC OnLine All 435, dated 20-04-2018]

 

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designate, the 3-judge bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ held:

“the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre-existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge).”

It was said that being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

Explaining the provision under Section 9 f the Act, the Court said:

“when the Appellate Officer is either the District Judge of the district or any another judicial officer in that district possessing necessary qualification, who could be designated by the District Judge, the question of such investiture of power of an appellate authority in the District Judge or Designated Judge would, by no standards, acquire the colour or for that matter trappings of persona designate.

Explaining further, the Court said that the District Judge or Principal Judge exercises judicial power of the State and is an authority having its own hierarchy of superior and inferior Courts, the law of procedure according to which it would dispose of matters coming before it depending on its nature and jurisdiction exercised by it, acting in judicial manner. Hence, the District Judge/Principal Judge of the City Civil Court and other judicial officers of these Courts possessing necessary qualifications constitute a class and cannot be considered as persona designata. The Appellate Officer, therefore, has to function as a Court and his decision is final in terms of Section 10 of 1971 Act. The Bench said:

“The legislative intent behind providing an appeal under Section 9 before the Appellate Officer to be the District Judge of the concerned District  Court in which the public premises are situated or such other judicial officer in that district possessing necessary qualification to be designated by the District Judge for that purpose, is indicative of the fact that the power to be exercised by the Appellate Officer is not in his capacity as persona designata but as a judicial officer of the pre-existing Court.”

[Life Insurance Corporation of India v. Nandini J. Shah, 2018 SCC OnLine SC 142, decided on 20.02.2018]

Case BriefsSupreme Court

Supreme Court: The bench of J. Chelameswar and SK Kaul, JJ held that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.

Different High Courts had given different opinion on the question as to whether an award under the Arbitration & Conciliation Act, 1996 is required to be first filed in the court having jurisdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightway filed and executed in the Court where the assets are located is required to be settled in the present appeal.

Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court were of the opinion:

“An award is to be enforced in accordance with the provisions of the said Code in the same manner as if it were a decree of the Court as per Section 36 of the said Act does not imply that the award is a decree of a particular court and it is only a fiction. Thus, the award can be filed for execution before the court where the assets of the judgment debtor are located.”

However, the Madhya Pradesh and Himachal Pradesh High Courts held:

“The transfer of decree should first be obtained before filing the execution petition before the Court where the assets are located.”

After discussing various provisions of the Act and the various orders of the High Courts at length, the Bench said:

“An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.”

It was, hence, held that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position. [Sundaram Finance Limited v. Abdul Samad, 2018 SCC OnLine SC 121, decided on 15.02.2018]

Case BriefsHigh Courts

Calcutta High Court: A civil petition was decided by a Single Judge Bench comprising of Sanjib Banerjee, J., wherein the orders of the lower appellate court and the trial court insofar as they refused to grant injunction in respect of Schedule C properties to the plaint, were set aside.

The petitioner-plaintiffs filed a suit regarding a property matter wherein injunction was granted in respect of properties covered under Schedule A and B, but was refused in respect of Schedule C properties on the only ground that such property was situated beyond the territorial limits of the trial court. Aggrieved thereby, the plaintiffs filed the instant petition.

The High Court perused the record and discussed law on the subject. The Court was of the view that it was inconceivable that only because a property was not situated within the jurisdiction of a particular court, the court refused to grant an injunction in respect thereof. With help of an example, the Court discussed Section 17 CPC which envisages a suit being instituted in one of the several courts within whose jurisdiction the properties may be situated. It is possible that “A” and “B” have disputes pertaining to six properties and all the six properties are not situated within the jurisdiction of any one particular court. If the cause of action is such that several suits need not be instituted, by virtue of Section 17 the plaintiff may invoke the jurisdiction of any one court within whose jurisdiction any of the properties may be situated; but that would not preclude that court from issuing an injunction in respect of properties situated beyond its jurisdiction.

Since the order of refusal to grant injunction was made only on the above mentioned ground without going into merits; the Court held that the orders of the lower appellate court and the trial court, insofar as they refused to grant injunction in respect of Schedule C properties to the plaint, were liable to be set aside which was ordered accordingly. [Reba Rani Bal V. Malay Krishna Bal, 2018 SCC OnLine Cal 143, order dated 05-02-2008]

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court returned a plaint on grounds of want of jurisdiction and vagueness of cause of action raised in an IA before it. The original suit was filed by the plaintiff, seeking a decree of permanent injunction restraining passing off and to claim damages against all defendants.

The plaintiff is a media house which operates a Hindi news channel by the name of ‘News Nation’ which is circulated across the country by way of cable streaming, DTH and online streaming. Plaintiff claimed considerable goodwill associated with the trade name. However, the trade name was pending before the Registrar of Trademarks, Delhi and hence, was not trademarked. The plaintiff claimed that Defendants 2 and 3 established a media house and started publishing a newspaper titled ‘News Nation Gujarat’ and that they also run a website with the domain name www.newsnationgujarat.com along with an interactive Facebook page titled “news nation Gujarat”. The plaintiff claimed that since the newspaper is also circulated through the internet and is hence, available to users in Delhi, the Court has jurisdiction to try the suit. Another grounds the plaintiff took was that it had received queries relating to the defendant media house from M/s Prime Time Communications, based in Delhi, expressing it’s intention to advertise in the said newspaper.

The Court held that merely hosting a web page on Facebook is not sufficient to confer jurisdiction on a court where the defendant does not carry out business. The Court also found that in a passing off action, the plaintiff has to plead and establish there has been a commercial transaction within the jurisdiction of the Court, which the plaintiff has failed to do. Resultantly, the Court, after being satisfied that it does not have jurisdiction to entertain the suit, returned it. [News Nation Networks Private Limited v. News Nation Gujarat, 2017 SCC OnLine Del 12698, decided on 22.12.2017]

Case BriefsHigh Courts

High Court of Madhya Pradesh, Jabalpur: Recently, a petition under Article 227 of the Constitution was filed before the High Court against the order of the court below to reject an application filed by petitioners under S. 45 of the Evidence Act. On going through the facts of the case, the proceedings till now and contentions of counsel from both the sides, the Court concluded that the sole question in the present case is that despite delay whether S. 45 application can be entertained or not.

The Court referred to L.S.Trading Co. v. Manish Mishra2010 SCC OnLine MP 213 : (2010) 4 MP LJ 228 in which it has been observed that the application under S. 45, Evidence Act cannot be rejected only on the ground of delay. The Court further on relating the reference to the facts of the present case observed that the delay alone is not the ground in this case for reject the application of the petitioner and conduct of the petitioner had also played a significant role for the same as the petitioners had themselves rejected a similar application earlier filed by the opposite party.

Further, the Court highlighted the point of law relating to its jurisdiction as to that the interference under Article 227 of the Constitution can be made if order is passed by the court without authority of law or it suffers from any manifest procedural impropriety or palpable perversity. It further held that interference cannot be made mere on a drop of hat and reiterated the stance of the Apex Court in various judgments that mere error of fact or law alone is not sufficient for interference. The Bench of Sujoy Paul, J. finally dismissed the petition stating that it would not act as a bull in a China shop. [Narendra Singh v. Gurmel Kaur,  2017 SCC OnLine MP 1358, decided on 07.11.2017]