Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed against the order of District Judge whereby appellant’s application for condonation of delay in filing first appeal was dismissed.

There was a partition between the appellant and his two sisters. Originally, in 2004, after the partition, two-third of the property fell into the share of appellant; whereas, the sisters got one-sixth each. However, in view of the amendment in Hindu Succession Act in 2005, on an application filed by the sisters, the earlier decree was modified and now all the three parties got one-third share each. Aggrieved by the modification, the appellant had filed a review petition in 2012 which was dismissed in 2014. Within two months thereafter, the first appeal was filed along with the application for condonation of delay of 4 years and 30 days. The District Judge, however, dismissed the application holding that delay had not been satisfactorily explained. Aggrieved thus, the present appeal was filed.

The High Court was of the view that after modification of the preliminary decree, the appellant must have acted on advice of his advocate, who instead of filing an appeal, preferred the review petition. The law on the law on the point was not clear; modification in shares in a partition having been introduced first time. Since the review petition was held not maintainable, the appellant had a right to file the first appeal. It was observed as well settled law that if a party is litigating its cause before a wrong forum under a bona fide belief as per legal advice gives by his advocate, the delay occurred in such proceedings has to be considered for deciding an application for condonation of delay. This is recognized in Section 14 of the Limitation Act. Therefore, the High Court set aside the order impugned and directed the parties to appear before the first Appellate Court. The appeal was, thus, allowed. [Patherao Narsu Patil v. Gangubai A. Lad,  2018 SCC OnLine Bom 2892, dated 03-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed a civil writ petition seeking quashing of trial court’s order directing filing of affidavits of witnesses.

Brief factual matrix is that the petitioner is one of the defendants in a suit for partition pending in the lower court wherein she has filed a list of witnesses. Principal District Judge, in the said suit, took cognizance of the said list of witnesses and directed her to file evidence by way of affidavit of the witnesses. This order was challenged by the petitioner contending that the said order is vitiated on account of not following the proper course of law because as a normal course, enforcement of appearance of the witnesses is through summons by the court unless the party citing witnesses can produce them on their own.

The High Court noted that despite a clear direction for conclusion of proceedings within a period of six months, the trial could not be completed because the defendants had failed to tender evidence and disregarded multiple orders passed to that effect by the trial court. It was also noted that the petitioner did not place the contention raised herein before the trial court on all such occasions when the interim orders were passed and as such the present writ petition was a mere dilatory tactic adopted to delay the course of trial.

Relying on the judgment in Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196 it was held that the as per Order XVIII Rule 4 and 5 CPC, the examination-in-chief of a witness has to be tendered by way of affidavit in every case – whether appealable or non-appealable; and on that holding the writ petition was dismissed. [Manorma Sharma v Sahib Saran Khajuria, 2018 SCC OnLine J&K 640, Order dated 14-09-2018]