ARTICLES OF AN ADVOCATE

Saturday, November 12, 2011

abetment of suicide ? - committing suicide as the accused inquired about her chastity - not amounting to abatement of suicide - JUDGEMENTS

abetment of suicide ? - committing suicide as the accused inquired about her chastity - not amounting to abatement of suicide - JUDGEMENTS

Posted by advocatemmmohan at 5:04 AM

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Transfer of Property Act, 1882: Adverse possession-Suit for declaration-Claim of ownership of land in dispute by adverse possession-Possession of plaintiffs claimed to be on the basis of sale deed-Defendants denied possession of plaintiff and asserted their possession-Evidence on record proving possession of plaintiffs-Suit decreed-Dismissal of suit by lower appellate court-In second appeal suit decreed by High Court-Plea of defendants at appellate stage that possession of plaintiffs was as sub-tenant (shikmi)-However, best evidence to prove sub-tenancy kept away from court, though available-On appeal, Held: evidence on record proves continuous and uninterrupted possession of the plaintiffs- Hence the plea of adverse possession established-Plea of plaintiffs being sub-tenants is devoid of merit as the same is not proved in the facts of the case. Code of Civil Procedure: Section 100-Second Appeal-Scope of-Held, if findings of subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside `by High Court. Order VIII Rule 2-Specific plea-Absence of-Effect thereof-Held, in the absence of a plea no amount of evidence led in relation thereto can be looked into. Evidence: Unstamped and unregistered sale deed-Evidentiary value of-Held, such document though not admissible in evidence, can be looked into for collateral purpose. `F' father of the appellants-defendants sold the land in question to predecessor-in-interest of the respondents-plaintiffs. Plaintiffs filed a suit in 1972 claiming to have entered into possession of the land on the basis of an unregistered and unstamped sale deed dated 9.5.1931 by father of defendants to their predecessor-in-interest, and had been in possession since then and as such they had become owners by adverse possession. In the written statement defendants denied the sale of the land and the possession of the plaintiffs. They took the plea that their father was in possession of the land till his death and after his death their mother had given possession of the land to predecessor-in-interest of the plaintiffs for the purpose of cultivation; that they had taken back possession of the land from him in 1957-58; that after the death of their father the land had been mutated in their names in the revenue records; and that there was no question of adverse possession by the plaintiffs as the land was actually in their possession. They claimed that the receiver appointed with respect to the suit land in proceedings under Section 145 Cr.P.C. was on their behalf. During trial, defendants had not produced their mother and the eldest son of `F' for evidence even though the eldest son was arrayed as defendant in the suit. In a previous litigation a notice (Exbt. P.6) in 1956 was issued on behalf of the defendants addressed to the predecessor-in-interest of the plaintiffs calling upon him to hand over the possession of the suit land in question herein, to them. Thereafter an application was filed in 1956 by the defendants before the Revenue authorities wherein they admitted that the land in question was in possession of the plaintiffs since the life time of their father and that the land was being cultivated by the plaintiffs. They had prayed in the said application that the plaintiffs be declared trespassers. In that application, the plaintiffs had denied the allegation of being trespassers and claimed to be in possession of the land in their own right on the strength of sale deed dated 9.5.1931 executed by father of the defendants to their predecessor. Therein the eldest son of `F' had admitted that plaintiffs were in possession for the last 26 to 27 years. Relying on the said admission the Revenue authorities dismissed the application and the appeal against the same was also dismissed in 1962. Trial court decreed the suit. Appeal against the trial court judgment was allowed. In second appeal High Court decreed the suit holding that the finding recorded by the Appellate Court was based on surmises and conjectures and was contrary to the evidence on record and the law and it came to a definite finding that predecessor-in-interest of the plaintiffs came in possession of the suit land in 1931 and continued to be in possession thereof till the date the present suit was filed in 1972. High Court also found that defendants did not care to file even a single revenue entry for the period between 1956 and 1962 that they had been recorded in possession of the suit land. The appellants-defendants at the appellate stage took the plea that the plaintiffs had been in possession of the suit land for a brief period after the death of their father, as `shikmi' i.e. sub-tenant. However, the date of creation of alleged sub-lease was not stated. In appeal to this Court, appellant-defendants contended that the question of possession is a question of fact and High Court while exercising power under Section 100 C.P.C had no jurisdiction to upset the findings on this question. Dismissing the appeal, the Court HELD: 1. If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100 C.P.C. High Court cannot shut its eyes to perverse findings of the courts below. In the present case, the findings of fact arrived by the lower appellate court were contrary to evidence on record and, therefore perverse, and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed. [570-C-D] 2.1. Under the law, a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case, the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. Father of defendants never disputed plaintiffs' title or possession of the suit land during his lifetime. There is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in question. The notice (Exbt. P.6) is an admission on the part of the defendants that the plaintiffs were in possession of the suit land at least on the date of the notice i.e. 16th April, 1956. In application following the notice, the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father, and that the land was being cultivated by the plaintiffs. The judgments of the revenue authorities establish that at least till 1962 the plaintiffs were in possession of the suit land. They also totally nullify the assertion of the defendants in their written statement in the present suit that they had taken possession of the suit land in 1957-58. [571-A-B-C; 571-F] 2.2. Regarding the plea of the defendants that they had taken possession of the land in suit from the plaintiffs somewhere in the year 1957, High Court has aptly remarked that the defendants were required "to open their mouth before the revenue authorities if not in 1957 at least in the year 1962 to show to the revenue authorities that they had obtained possession." [573-C] 2.3. The claim of the defendants regarding taking possession of suit land from plaintiffs in 1957-58 having been found to be false, it follows that the defendants never came into possession of the suit land. Defendants started asserting their title to the suit land since at least 1956 when they issued the notice Exhibit P.6 while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support to the plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had however, failed to get possession of the suit land. The plea of adverse possession raised by the plaintiff is thus clearly established. [571-H; 572-A-B] 3.1. The plea of sub tenancy (shikmi) was never taken in the written statement the way it has been put forth in the instant appeal. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support the plea except some alleged revenue entries. In the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub-tenancy (shikmi) the defendants cannot be allowed to build up a case of sub-tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. [572-C-D-E] 3.2. The alleged revenue entries relied upon by the defendants do not support the plea of the defendants that the plaintiffs' possession of the land was as `shikmi' tenants. The mother of the defendants was alive at the relevant time and her evidence on this point would have been the best evidence. She could have been produced in evidence in support of this plea. Apart from this, even the eldest brother of the defendants was not examined as a witness, even though he was arrayed as a defendant in the suit. The best evidence in relation to the plea of `shikmi,' though available, was kept away from the court. Hence the claim that the argument that the plaintiffs were `shikmi' tenants in the suit land is wholly devoid of any merit. [572-E-F; 573-B] 4. Receiver's possession of suit land in proceedings under Section 145 Cr.P.C. could not be said to be on behalf of the defendants. The plaintiffs had become bhoomiswami with respect to the suit land prior to the appointment of the receiver. [573-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7579 of 1999. 2003 AIR 1905, 2003( 2 )SCR 564, 2003( 4 )SCC 161, 2003( 2 )SCALE589 ,

CASE NO.: Appeal (civil) 7579 of 1999 PETITIONER: Bondar sIngh & Ors. RESPONDENT: Nihal Singh & Ors. DATE OF JUDGMENT: 0...
M. Padmanabhacharlu - Great Father

Passing Night released the life from Great Journey of 85 years My Father's soul rest in Great Peace Great Personality st...
Consumer Protection Act, 1986: Medical Negligence - Expert Evidence - Requirement of - Held: Expert evidence is not required in all medical negligence cases - Expert evidence is necessary when Fora comes to the conclusion that case is complicated or such that it cannot be resolved without assistance of expert opinion - Fora cannot follow mechanical or strait jacket approach - Each case has to be judged on its own facts - Negligence. s. 2(1)(g) - Medical Negligence/Deficiency in service - Patient suffering intermittent fever with chill admitted to hospital - Condition worsened critically and shifted to other hospital, where patient was declared dead - Complaint by husband before District Forum alleging deficiency in service - Award of two lakhs compensation - Set aside by State Commission as also National commission holding that there was no expert evidence to prove negligence - On appeal, held: It was a case of wrong treatment - Test conducted by other hospital for malaria found positive - Widel test for typhoid found negative - Patient treated for typhoid and not malaria by hospital where patient admitted when complaint was of intermittent fever with chill - As a result condition of patient deteriorated and became very critical and was removed to other hospital where she could not be revived - She had no pulse, no BP and in an unconscious state with pupils dilated and had to be put on a ventilator - Thus, expert evidence was not necessary to prove medical negligence. Negligence: Medical negligence - Doctrine of res ipsa loquitur - Applicability of - In medical negligence cases - Held: Doctrine is applicable where negligence is evident - Complainant does not have to prove anything as the thing (res) proves itself - Respondent has to prove that he has taken care and done his duty to repel the charge of negligence - Doctrines - Torts. Medical Negligence - Requirement of expert evidence in medical negligence cases - Directions in D'souza's case to have expert evidence in all cases of medical negligence whether binding - Held: Directions rendered in D'souza's case ignoring the provisions of the governing statute and earlier larger Bench decision on the point - Thus, not a binding precedent in cases of medical negligence before consumer Fora - Precedent. Medical negligence - Bolam test - Held: Lays down the standards for judging cases of medical negligence. Evidence Act, 1872: ss. 61, 64, 74 and 75 - Complaint before consumer forum alleging medical negligence - Opposite party alleging that hospital records proved without following the provisions of the Evidence Act - Held: Provisions of the Evidence Act are not applicable - Complaints before consumer forum are to be tried summarily. Judgment/Order: `Per incuriam' - When judgment rendered `per incuriam' - Held: When a judgment is passed ignoring the provisions of the governing statute and earlier larger Bench decision on the point, it is rendered `per incuriam'. The appellant's wife was suffering from intermittent fever with chill and was admitted in the respondent no. 1 hospital. She underwent certain tests but the tests did not reveal malaria. The patient did not respond to the medicines administered to her and her condition deteriorated day by day. She was finally shifted to Y hospital in a very precarious condition and was virtually clinically dead. The Y hospital issued a death certificate which disclosed that the patient died due to cardio respiratory arrest and malaria. The appellant filed a complaint against the respondent no. 1 hospital before the District Forum alleging negligence in treating his wife. The doctor R of the respondent no. 1 hospital deposed that the appellant's wife was not treated for malaria. The District Forum held that the patient was suffering from malaria but was treated for typhoid and as such was subjected to the wrong treatment, and awarded compensation of Rs. 2 lakhs. The respondent no. 1 filed an appeal. The State Consumer Disputes Redressal Commission allowed the appeal holding that there was no expert opinion to substantiate the allegation of negligence. The National Consumer Disputes Redressal Commission upheld the order of the State Consumer Forum. Hence the present appeal. Allowing the appeal, the Court HELD: 1. The general direction in *Martin F. D'souza v. Mohd. Ishfaq's case to have expert evidence in all cases of medical negligence is not binding. In the facts and circumstances of the case, expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. The orders passed by the State Commission and the National Commission are set aside and the order passed by the District Forum is restored. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum. [Para 55] [33-F-H; 34-A] 2.1. The complaints before consumer forums are tried summarily and the Evidence Act, 1872 in terms does not apply. The District Forum rightly overruled the objection on behalf of the respondent no.1 before the District Forum that the complaint sought to prove Y Hospital's record without following the provisions of ss. 61, 64, 74 and 75 of the Evidence Act. [Para 8] [14-G-H; 15-A-B] Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others (2009) 9 SCC 221, relied on. 2.2. Before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. In these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. [Para 13] [16-C-F] 2.3. As regard the requirement of expert evidence, before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. Section 3 of the Consumer Protection Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. Cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. [Para 32] [23-F-H; 24-A] ***Indian Medical Association vs. V.P. Shantha & others (1995) 6 SCC 651, relied on. 2.4. Before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. [Para 54] [33-A-F] 2.5. The instant case is a case of wrong treatment in as much as the patient was not treated for malaria when the complaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for Typhoid and as a result of which the condition of the patient deteriorated. When the condition became very critical the patient was removed to Y Hospital but patient could not be revived. RW-1-doctor R admitted in his evidence that the patient was not treated for malaria. The evidence shows that of the several injections given to the patient, only one was of Lariago. Apart from Lariago, several other injections were also administered on the patient. Lariago may be one injection for treating malaria but the finding of Y Hospital shows that smear for malarial parasite was positive. There is thus a definite indication of malaria, but so far as Widal test was conducted for Typhoid it was found negative. Even in such a situation the patient was treated for Typhoid and not for malaria and when the condition of the patient worsened critically, she was sent to Y Hospital in a very critical condition with no pulse, no BP and in an unconscious state with pupils dilated, as a result of which the patient had to be put on a ventilator. Thus, the expert evidence was not necessary to prove medical negligence. [Paras 14 and 15] [16-F-H; 17-A-B] 3. The parameters set down in Bolam test are to be reconsidered as a guide to decide cases on medical negligence and specially in view of Article 21 of the Constitution which encompasses within its guarantee, a right to medical treatment and medical care. In England, Bolam test is now considered merely a `rule of practice or of evidence. It is not a rule of law.' However, Bolam test correctly lays down the standards for judging cases of medical negligence, and there is no departure from the same. [Para 21] [19-C-E] **Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1, relied on. Bolam vs. Friern Hospital Management Committee 1957 (2) All England Law Reports 118 - referred to. Medical Negligence by Michael Jones Sweet & Maxwell, Fourth Edition 2008, paragraph 3-039 pg 246; Professional Negligence by Jackson & Powell Sweet & Maxwell, Fifth Edition, 2002 paragraph 7-047 pg 200; Clinical Negligence by Michael Powers QC, Nigel Harris and Anthony Barton, 4th Edition, Tottel Publishing paragraph 1.60, referred to. 4.1 When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam'. [Para 51] [32-A] A.R. Antulay vs. R.S. Nayak and Anr. (1988) 2 SCC 602; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and Ors. (1990) 3 SCC 682, referred to. 4.2. In **Jacob Mathew vs. State of Punjab's case, the direction by the three-judge bench for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora. Subsequently, the directions in D'souza's case to have expert evidence in all cases of medical negligence are not consistent with the law laid down by the larger Bench in Mathew's case. The reason why the larger Bench in Mathew's case did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. Those directions in D'souza's case are also inconsistent with the principles laid down in another three-Judge Bench of this Court in ***Indian Medical Association vs. V.P. Shantha's case wherein it was held that the definition of `service' u/s.2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner. In D'souza's case, the earlier larger Bench decision in ****Dr. J. J. Merchant vs. Shrinath Chaturvedi has not been noticed. [Paras 29, 30, 31 and 37] [23-A-E; 26-B] 4.3. The directions in paragraph 106 in D'souza's case is contrary to the provisions of the Consumer Protection Act, the Rules which is the governing statute and also to the avowed purposes of the Act. The Act was brought about in the background of worldwide movement for consumer protection. It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man. [Paras 38, 39 and 42] [26-B-D; 42-A-C] State of Karnataka v. Vishwabharathi House Building Coop. Society & Others (2003) 2 SCC 412; Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243; Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668; Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39; India Photographic Co. Ltd. v. H.D. Shourie (1999) 6 SCC 428, referred to. 4.4. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. If the general directions in paragraph 106 in D'souza are to be followed then the doctrine of res ipsa loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant. [Paras 47 and 48] [31-A-C] Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39; Postgraduate Institute of Medial Education and Research, Chandigarh v. Jaspal Singh and others (2009) 7 SCC 330, referred to. Scott v. London & St. Katherine Docks Co. (1865) 3 H & C. 596, referred to. 4.5. The two-Judge Bench in D'souza's case has taken note of the decisions in Indian Medical Association's case and Mathew's case, but even after taking note of those two decisions, D'souza's case gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant's case has not been noted in D'souza's case. Apart from that, the directions in paragraph 106 in D'souza's case are contrary to the provisions of the governing statute and also inconsistent with the avowed purpose of the Act. Thus, the general direction given in paragraph 106 in D'souza's case cannot be accepted as constituting a binding precedent in cases of medical negligence before consumer Fora and those directions must be confined to the particular facts of that case. [Paras 53 and 49] [31-C- D; 32-E-G] *Martin F. D'souza v. Mohd. Ishfaq 2009 (3) SCC 1, held per incuriam. **Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1; ***Indian Medical Association vs. V.P. Shantha & others (1995) 6 SCC 651; ****Dr. J. J. Merchant and others vs. Shrinath Chaturvedi (2002) 6 SCC 635, relied on. Tarun Thakore vs. Dr. Noshir M. Shroff O.P. No. 215/2000 dated 24.9.2002, referred to. R. vs. Lawrence (1981) 1 All ER 974; Andrews v. Director of Public Prosecutions, (1937) 2 All ER 552 (HL); Riddell vs. Reid (1943) AC 1 (HL), referred to. Case Law Reference: (2009) 9 SCC 221 Relied on. Paras 8, 29, 1957 (2) All ER 118 Referred to. Paras 16, 17, 18, 19, 21 (2005) 6 SCC 1 Relied on. Paras 21, 27, 29, 30, 53 (1981) 1 All ER 974 Referred to. Para 23 (1937) 2 All ER 552(HL) Referred to. Para 23 (1943) AC 1 (HL) Referred to. Para 25 (1995) 6 SCC 651 Relied on. Paras 32, 33, 34 (2002) 6 SCC 635 Relied on. Paras 36, 37, 53 (2003) 2 SCC 412 Referred to. Para 40 (1994) 1 SCC 243 Referred to. Para 41 (2000) 7 SCC 668 Referred to. Para 41 (1998) 4 SCC 39 Referred to. Para 41, 43 (1999) 6 SCC 428 Referred to. Para 41 (2009) 7 SCC 330 Referred to. Para 44 (1865) 3 H & C. 596 Referred to. Para 45 2009 (3) SCC 1 Held per incuriam Para 49, 50, 53, 55 (1988) 2 SCC 602 Referred to. Para 51 (1990) 3 SCC 682 Referred to. Para 52 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2641 of 2010. From the Judgment & Order dated 19.2.2009 of the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 303 of 2009. N.S. Gahlot, R.K. Singh, Sanjeev Malhotra for the Appellant. K. Maruthi Rao for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELL...
"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause." = In M.C. Chockalingam v. V. Manickavasagam ((1974) 1 SCC 48), this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, ((1989) 4 SCC 131), it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh ((1995) 3 SCC 426), this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession.. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner".

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO CCC APPEAL No.225 OF 2001 and bt 09-06-2011 Smt.Askari Begum and others ...
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ii) Whether the execution petition is barred by limitation? iii) Whether the decree holders have locus standi to lay the execution petition?

THE HON'BLE SRI JUSTICE K.G. SHANKAR CRP No.5224 of 2005 06.01.2012 Kamatam Sangalappa and 2 others Kapadam Sngalappa ...
Order 38 Rule 5 of C.P.C.-Order 21 Rule 46A and 46C Sec.9 of the Arbitration and Conciliation Act, =This application under Order XIV Rule 8 of O.S. Rules read with Sec.9(ii)(a),(b) (c) & (e) of the Arbitration & Conciliation Act, 1996 has been filed by the applicant, for issuance of prohibitory order restraining the Garnishees from making the payment upto a limit of Rs.2,73,11,000/- (Rupees two crores seventy three lakhs and eleven thousand only) and consequently, direct the Garnishees to deposit the amount so withheld into this Court, pending enforcement of the award that may ultimately be passed by the sole Arbitrator =The provisions of Order 21 Rule 46A and 46C cannot apply to proceeding under Sec.9 of the Arbitration and Conciliation Act, as underlying principle of Order 21 Rule 46A to 46C can be invoked after passing the decree, as the words used are judgment debtor and not debtor or parties. = Even on the admitted facts pleaded in this case, it can safely be said that this application is nothing but misuse of process of Court, as application framed under Sec.9 of the Act, is not competent in this Court for want of jurisdiction and for the reason that order against Garnishee can be passed to execute a decree. " The argument that the power under Section 9 of the Act is independent of the Specific Relief Act or that the restrictions placed by the Specific Relief Act cannot control the exercise of power under Section 9 of the Act cannot prima facie be accepted. The reliance placed on Firm Ashok Traders & Anr. Vs. Gurumukh Das Saluja & Ors. [(2004) 3 S.C.C. 155] in that behalf does not also help much, since this Court in that case did not answer that question finally but prima facie felt that the objection based on Section 69 (3) of the Partnership Act may not stand in the way of a party to an arbitration agreement moving the court under Section 9 of the Act. The power under Section 9 is conferred on the District Court. No special procedure is prescribed by the Act in that behalf. It is also clarified that the Court entertaining an application under Section 9 of the Act shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it. Prima facie, it appears that the general rules that governed the court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application under Section 9 of the Act. There is also the principle that when a power is conferred under a special statute and it is conferred on an ordinary court of the land, without laying down any special condition for exercise of that power, the general rules of procedure of that court would apply. The Act does not prima facie purport to keep out the provisions of the Specific Relief Act from consideration. No doubt, a view that exercise of power under Section 9 of the Act is not controlled by the Specific Relief Act has been taken by the Madhya Pradesh High Court. The power under Section 9 of the Act is not controlled by Order XVIII Rule 5 of the Code of Civil Procedure is a view taken by the High Court of Bombay. But, how far these decisions are correct, requires to be considered in an appropriate case. Suffice it to say that on the basis of the submissions made in this case, we are not inclined to answer that question finally. But, we may indicate that we are prima facie inclined to the view that exercise of power under Section 9 of the Act must be based on well recognized principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a receiver."

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/04/2013 CORAM THE HON'BLE MR.JUSTICE VINOD K.SHARMA A.No.5314 of 2012 ...

CONTENTS

and Section 12(2) of the Court Fees Act with a prayer to decide the court fees as a preliminary issue (1)
AP ORIDINANCE ON MICRO FINANCE (1)
APPLICATION OF LAWS (2)
arbitration act (2)
arbitration and corporate laws (3)
ARTICLE (1)
assigned lands (2)
audit objection (1)
Bar council act (1)
CASH ACCEPTANCE AGAINST TO THE PROVISION OF SEC. 271 D (1)
central excise act (1)
cheque bounce (2)
cinematography act (1)
CIVIL PROCEDURE CODE (7)
CONSTITUTION OF INDIA (22)
consumers (3)
contempt of court (7)
COPY RIGHTS ACT (1)
CORPORATE LAWS (18)
court martial (1)
CRIMINAL PROCEDURE CODE (34)
cruelty (1)
defamation (1)
deletions allowed (1)
DOMESTIC VIOLENCE ACT (41)
DOWRY DEATH (2)
DOWRY HARASSMENT CASE (1)
DRUGS AND COSMETIC ACT (1)
Education act (5)
ELECTION CASES (2)
ENCHROACHMENT (1)
environmental pollutions by corporates CORPORATE LAWS (1)
EVIDENCE ACT (4)
FATAL ACCIDENT ACT (1)
FOOD ADULTERATION ACT (1)
GUARDIANS AND WARDS ACT (3)
HINDU MARRIAGE ACT (9)
HINDU SUCCESSION ACT (3)
HOUSING BOARD (1)
income tax (4)
INDIAN EVIDENCE ACT (3)
INDIAN PARTNERSHIP ACT (1)
indian penal code (13)
inter state disputes (1)
issue the passport by using the name of the step father S.Ravisankar in the passport. (1)
JUVENAL ACT (2)
Labours laws (1)
land acquisation act (12)
law of pre-emption (1)
lease (1)
LIMITATION ACT (1)
M. Padmanabhacharlu - Great Father (1)
MOTOR VEHICLE ACCIDENTS ACT (11)
murder (10)
MUSLIM LAWS (5)
My views on sec. 53 of Insolvency Act (1)
ndps act (1)
no additions (1)
oral sale not proved (1)
Order 14 Rule 2 r/w. Section 151 C.P.C. (1)
Order 38 Rule 5 of C.P.C.-Order 21 Rule 46A and 46C Sec.9 of the Arbitration and Conciliation Act (1)
PARTITION SUIT (2)
PILS (2)
PROMISSORY NOTES (3)
PROPERTY LAWS (8)
public litigation (1)
reassessment should stand on it's own legs (1)
RTI Act (1)
SALE OF GOODS ACT (1)
service matters (27)
service- matter (1)
SPECIFIC RELIEF ACT (11)
stamp duty and penalty (2)
TAX (1)
town planning act (1)
TRANSFER OF PROPERTY ACT (2)
what is prima faice proof (1)
widow remarriage act (1)
women laws (5)

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advocatemmmohan

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Whether the term "prescribed" in Section 15(1) of the Limitation Act, 1908 applies exclusively to periods prescribed in the First Schedule of the Limitation Act, or if it extends to general statutes like Section 48 of the Code of Civil Procedure (CPC). Ruling: The expression "prescribed" applies not only to limitation periods in the Limitation Act's schedules but also to general statutes like Section 48 of the CPC. Section 48 establishes a 12-year maximum outer limit for executing a decree without prescribing the specific timeline for individual execution applications, which must satisfy Article 182 of the Limitation Act. - Supreme Court of India *Prem Lata Agarwal vs. Lakshman Prasad Gupta & Ors.* *Date of Judgment:* 23 April 1970 *Bench:* A.N. Ray, I.D. Dua *Citation:* 1...
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