Miscellaneous part 2

Summary of Question-  Suppression of Fact  by a Litigant

Question – Whether every  suppression of fact by a litigant dis­entitles the litigant  to relief. 

Answer-  No. The suppressed fact must be material one to disentitle the litigant to relief.

Rationale- 


1. In the Appeal (civil) 1650 of 2004 in the Supreme Court, decided on 17 March, 2004,  the principal basis on which Single Bench and the Division Bench of Hon’ble  High Court  refused relief to the Appellant on the ground that the appellant was guilty of suppression of a material fact viz., the filing of the suit prior to approaching the Court under Article 226.

2. The Apex Court observed and held as under:

"As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken................................................................................................
Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226  is unbelievable, the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226 , it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. But this Court has also held in C. B. Gosain Bhan V. State of Orissa 14 STC 766= 1963 (2) SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits.”

                                                                                                               [Emphasis Supplied]

 

Summary of Question-  Appeal against Acquittal.

Question – Whether Appellate Court is justified in interfering with the Acquittal if a probable view has been taken by Trial Court .

Answer- The Hon’ble Supreme Court  has reiterated that if the acquittal is justified  on a probable view taken by trial court , it should not be interfered with in Appeal.

Rationale- 

In CRIMINAL APPEAL Nos . 407- 408 of 2009  decided on 4th. December 2018, Apex Court observed and held :

 
1. The approach of the High Court in an appeal against acquittals was explained by this Court in Surajpal Singh & Ors. v. The State (1952) 3 SCR 193 as follows: 
 

“It is well-established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.”

2. This Court in Muralidhar @ Gidda & Anr. v. State of Karnataka (2014) 5 SCC 730 referred to several earlier judgments dealing with appeals against acquittals and observed that the appellate court must bear in mind the following : 
 

“12. .. ..
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”

3. It is relevant to refer to another judgment of this Court in Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450   in which the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court’s acquittal were crystallised as under: 
 

“70. …
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in “grave miscarriage of justice”;
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
 

2. The appellate court must always give proper weight and consideration to the findings of the trial court.
 

3. If two reasonable views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.”

4. Interference with the judgment of the trial court in this case by the High Court is on a re-appreciation of evidence which is undoubtedly permissible. Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective. Interference with an order of acquittal is not permissible on the ground that a different view is possible. If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with.

 

 

 

Summary of Question- Consumer Complaint and Arbitration Agreement.

Question – Whether a complaint filed under Consumer Protection Act would proceed despite there being any Arbitration Agreement between parties even after amendment made in section 8 of the Arbitration and Conciliation Act in year 2015.

Answer- Yes.   

Rationale-

In the REVIEW PETITOIN (C) Nos. 2629-2630 OF 2018 in CIVIL APPEAL NOS.23512-23513 of  2017, decided on 10th. December 2018, the  Hon’ble Supreme Court observed and held :

"The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law. The submission of the petitioner that after the amendment the law as laid down by this Court in National Seeds Corporation Limited(supra) is no more a good law cannot be accepted. The words “notwithstanding any judgment, decree or order of the Supreme Court or any Court” were meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall entitle to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The words added in Section 8 cannot be meant for any other meaning.... "

".. .. in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/          special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the  arbitration"

 

Summary of Question- Liability of owner of Vehicle even after transfer of vehicle.

Question –  Whether owner of vehicle can be held  liable for compensation (if accident occurs) even after transfer of vehicle till the original owner's name continues in the records of RTO even though there is period prescribed in the M V Act for reporting the Transfer to the RTO.
 

Answer- Yes.   

 Rationale-

1.  The Apex  Court in CIVIL APPEAL NO.11369 OF 2018 , decided on  14th. December 2018, reiterated the following legal position as held in (2008) 17 SCC 624 para 4:


“Even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person … … …
Merely because the vehicle was transferred does not mean that such registered owner stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person.”

2. And the  Apex Court held :

"5. It is true that in terms of Section 50 of the Act, the transfer of a vehicle ought to be registered within 30 days of the sale. Section 50(1) of the Act obliges the transferor to report the fact of transfer within 14 days of the transfer. In case the vehicle is sold outside State, the period within which the transfer ought to be reported gets extended. On the other hand, the transferee is also obliged to report the transfer to the registering authority within whose jurisdiction the transferee has the residence or place of business where the vehicle is normally kept. Section 50 thus prescribes timelines within which the
transferor and the transferee are required to report the factum of transfer. As per Sub-Section 3 of said Section 50, if there be failure to report the fact of transfer, fine could be imposed and an action under Section 177 couldthereafter be taken if there is failure to pay the amount of fine. These timelines and obligations are only to facilitate the reporting of the transfer. It is not as if that if an accident occurs within the period prescribed for reporting said transfer, the transferor is absolved of the liability."

 

Summary of Question- Court’s observation tarnishing  lawyer's professional career

Question –  Whether Courts should refrain and exercise self restraint in assessing the competence of individual Advocate and in making  observation to this effcet in  his judicial verdicts / orders when such obseravtion  will mar and tarnish the advocate's  professional career.
 

Answer- Yes.   

 Rationale-

1. A Division Bench of the Hon’ble Uttarakhand High Court in Special Appeal No. 464 of 2018 vide decision dated 12.11.2018.

2. In the said case , the Hon'ble Single Bench Judge made following observation :

“It appears to this Court that Mr. Paresh Tripathi, C.S.C. is not ready to accept the responsibility, being highest law officer. This Court has already observed in its previous order that he is not capable to do work in the interest of the State Government. Several orders, passed by this Court, have been communicated to the State Government to look into the matter and to do the needful. Orders passed by this Court also sent to the Chief Secretary, State of Uttarakhand and Secretary (Law) cum L.R., State of Uttarakhand but this Court feels that any of the order, sent by this Court, has not been complied with yet. Form the working style of C.S.C. it would reveal that C.S.C., who is having such highest position of law officer, failed to discharge its duties properly and to save the interest of State Government. Earlier, it was observed by this Court that files are not  being allotted to a particular Lawyer to conduct the case on behalf of the State so that a particular Lawyer may appeared on behalf of the State and take responsibility and credit of the case. The file, on several dates, goes in the hands of a new Lawyer who is not acquainted with the facts, rather new State Lawyer who come on behalf of the State waste the valuable time of the Court, as they are not aware of the correct facts of the case and proceedings of previous stage of the case.”

3. The Hon'ble Division Bench In Appeal observed and held as quoted below :

"The directions issued by the learned Single Judge directing the Secretary Law as well as the State Government for taking action against Chief Standing Counsel, wherein the Court has drawn a conclusion that the Chief Standing Counsel is not competent and is incapable to protect the interest of the State, at least, we think that it is not an act, which forms part of dispensation of justice by the Court in making stigmatic remarks against a counsel and recording a finding on the same. As competence always happens to be a variable factor depending from individual to individual and his perception; its interpretation by any judicial finding, at least, of intellect of an advocate ought to be avoided by the Courts, more particularly, when it has an effect of tarnishing his/her professional career and capabilities and becomes an issue of discussion and example to be quoted by the rival aspirants for the post, who may derive to take advantage out of it, as these posts are political appointments depending upon pleasure and displeasure. Even if it is assumed for a moment that the Court can do it since it is a finding pertaining to the capability of a particular counsel, the Court ought to have issued a show-cause notice to enable the counsel against whom the observations are made to have a say in the matter, if any lacuna existed."
                                                                                                                                                    [Emphasis Supplied]
" We also think that having pondered a lot that even we as Judges are not expected to act as an expert to assess the individual competence of an Advocate in the absence of any expertise, as it may at times such assessment be influenced by personal bias of a Judge towards an individual, as reflected herein, which has chanced recurringly in number of cases against the appellant. Apart from it, Judges too, are human being, they are at least not devised with self installed mechanism which can detect and measure the competence of an individual as it is always dependent ones own capacity to assess, because a person can be a perfect professional for one person, and may not be so far the other. Hence, we hold that at least the Courts should refrain and exercise self restraint in assessing the competence of individual Advocate and that too reflecting the same in his judicial verdicts / orders and tarnish his professional career

                                                                                                                                                  [Emphasis Supplied]

 

Summary of Question- Pleading and Proof in Specific Performance of Contract

Question –  What are to be pleaded and proved in a suit for Specific Performance of Contract.

Answer- There are  Five things which are required to be pleaded and proved, and  considered by court in a suit for Specific Performance of contract.   

 Rationale-


In CIVIL APPEAL No. 4453 OF 2009 , decided on 7th. January 2019, the Hon’ble Supreme Court  observed and held :

"10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.

11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.

                                                                                                                                                      [Emphasis Supplied]

 

Summary of Question-   Injunction from disturbing possession  in a suit under section 38 of specific Reliefs Act.
 

Question –  Whether,  in a suit under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession can be granted if the plaintiff fails to prove  that he was in actual possession of the suit property on the date of filing of the suit.
 

Answer-  No.  Plaintiff’s prayer for  injunction,  in a suit under Section 38 of the Specific Relief Act , to restrain  defendant from disturbing possession may not be granted unless the plaintiff proves that he was in actual possession of the suit property on the date of filing of the suit.

 Rationale-

 

In CIVIL APPEAL NO. 1509 OF 2019, decided on 6th. Feb. 2019, the Hon’ble supreme court observed and held:

"9. In a suit filed under Section 38 of the Specific Relief Act, permanent injunction can be granted only to a person who is in actual possession of the property......."

"11......... Under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit...."

" 17. As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act,  possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction."

 

Summary of Question- Stricture by Higher Judiciary

Question –  Whether Higher Judiciary  should avoid from making any disparaging harsh remarks and strictures against any judicial/administrative officer while examining their action/order impugned in the judicial proceedings.
 

Answer- Yes

 Rationale-

 

In CIVIL APPEAL Nos.126­156 OF 2019, decided on 7th Jan. 2019), the Hon'ble Supreme Court observed and held :

"65)The question as to what should be the  role of the higher judiciary in making adverse remarks and passing strictures against the  judicial/administrative authorities, whose  order action is under challenge has been the  subject matter of several decisions of this Court. This Court in these decisions has  held that   the   higher   judiciary   must   avoid  as far as possible from making any  disparaging harsh remarks and   strictures against any   judicial/administrative officer while examining their action/order impugned in the judicial proceedings.

66)  It is  apposite  to  refer to  a passage from the decision of this Court in Awani Kumar Upadhyay vs. High   Court   of   Judicature   of Allahabad & ORS (2013) 12 SCC 392, wherein this Court has laid down a rule of caution in following words:
 

“11.   It   is   made   clear   that   we   are   not undermining   the   ultimate   decision   of   the 
High   Court   on   merits.   However,   we   are constrained to observe that the higher courts
every   day   come   across   orders   of   the   lower courts which are not justified either in  law or in   fact  and  modify  them  or  set  them aside. Our legal system acknowledges the  fallibility of the Judges, hence it provides  appeals and revisions.   Inasmuch   as   the   lower   judicial  officers   mostly   work   under   a   charged atmosphere   and   are constantly under psychological pressure and  they do not have the facilities which are    available in the higher courts,   we   are   of   the view that the remarks/observations and  strictures are to be avoided   particularly   if   the officer has no occasion to put forth his reasonings.  Further, if   the  passage complained of is wholly irrelevant and unjustifiable and its retention on the records will cause serious    harm to the persons to whom it refers and its  expunction will  not  affect  the  reasons  for the   judgment or   order,   request   for   expunging   those remarks   are   to   be   allowed.  We,   once   again,
reiterate   that   harsh   or   disparaging   remarks are  not   to  be  made   against   judicial   officers and   authorities   whose conductbcomes into consideration before the courts of law unless it is really for the   decision of the casevas an integral part  thereof.”

 

 

Summary of Question- Fixed Time Limit  for Filing Written Statement in Commercial Suits
 

Question –  Whether court is empowered to  extend time for filing written statement beyond 120 days.

Answer-  No.  In a commercial suit , under Commercial Courts Act, 120 Days’ time fixed for filing Written Statement is mandatory. Court cannot grant extension beyond 120 days. Even inherent powers under Section 151 CPC cannot be invoked to allow time for filing written statement beyond 120 days because mandatory provisions of Order V read with Order VIII Rule 1 and 10 of CPC (applicable to Commercial Suits) cannot be circumvented by recourse to the inherent power under Section 151.

 Rationale-

1.  In CIVIL APPEAL NO. 1638 of 2019, decided on 12th February 2019,  the Hon’ble Supreme Court observed and held :

"8) The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 came into force on 23.10.2015 bringing in their wake certain amendments to the Code of Civil Procedure. In Order V, Rule 1, sub-rule (1), for the second proviso, the following proviso was substituted:

“Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other days, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

Equally, in Order VIII Rule 1, a new proviso was substituted as follows :

“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

This was re-emphasized by re-inserting yet another proviso in Order VIII Rule 10 CPC, which reads as under:-

“Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up.

Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.”

A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days."

 

2. The Apex Court also did not allow to apply  Section 151 CPC observing as under :

" Clearly, the clear, definite and mandatory provisions of Order V read with Order VIII Rule 1 and 10 cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein."

 

 

Summary of Question- Entry in Revenue Records  
 

 

Question –  Whether  presumption as to correctness of entry in Revenue Records can be challenged.

Answer-  Yes. There is presumption as to correctness of entry in Revenue Records but such entry can be challenged if the entry is made fraudulently or surreptitiously.

 Rationale-


1. The Hon'ble Supreme Court in a case, reported in (1976) 3 SCC 642, observed and held:

“14. It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to  possessory title.”

2. In CIVIL APPEAL NO.516 OF 2009  , decided on the 5th. February 2019, the Apex court reiterated the said legal position.

 

Summary of Question-   Restoration of Appeal in case of dismissal in default  
 

Question –  Whether  dismissal of Appeal in default should ordinarily be restored.

Answer-  Yes. Dismissal of  appeal in default and dismissal of the appeal on merits makes a difference. The former dismissal is behind the back of the litigant and it should be restored by the court.

 Rationale-


1. In CIVIL  APPEAL No. 1463 OF 2019 , decided on the 5th February 2019, referred to the following observation  of the Hon'ble Supreme Court in the case reported in AIR 1955 SC 425 in the following words:

"20. Vivian Bose J., speaking for the Bench, in his distinctive  style  of  writing  made  the following  observations while dealing with the case arising out of Order 9 and reminded the Courts of their duty while deciding the case.  The  observations are apt and read as under:
 

“A   code   of   procedure   must   be   regarded   as such. It   is  procedure  something  designed to facilitate   justice  and   further   its  ends:  not  a penal   enactment   for   punishment and penalties; not a thing  designed to trip people up. Too technical a construction  of sections that leaves no room  for reasonable elasticity of interpretation   should therefore be guarded against (provided always that justice is done to  both  sides)   lest  the  very  means  designed for   the   furtherance   of   justice   be   used   to frustrate   it.   Our   laws   of   procedure   are grounded   on   a   principle   of   natural   justice which   requires   that   men   should   not   be condemned   unheard,   that   decisions   should not   be   reached   behind   their   backs,   that proceedings   that   affect   their   lives   and property   should   not   continue   in   their absence   and   that   they   should   not g  be precluded from participating   in   them.   Of course, there  must  be  exceptions  and where they  are  clearly definedthey must be given effect to. But  taken by and large, and subject to that proviso, our  laws of procedure  should be   construed, wherever that is reasonably possible, in the     light of that  principle.”

2. And the Apex Court observed :

"22. In   our   view,   the   Courts   below  should have seen that the first appeal is a    valuable right of the appellant   and,   therefore,   the   appellant­ – Authority was entitled for an opportunity to prosecute their appeal on merits. If the   appellants advocate did not appear may be     for myriad reasons, the Court could have   imposed some cost on them for restoration of their appeal to compensate the respondent     (plaintiff) instead of depriving     them of their valuable right to prosecute the   appeal on  merits. This is what Justice. Vivian   Bose   has   reminded   to   the   Courts   while dealing with the cases of this nature in  Sangram Singh (supra) to do substantial justice to both the parties to the lis. Indeed,     dismissal of the appeal in default and    dismissal of the appeal on merits makes a  difference.   The   former   dismissal   is   behind   the back   of   the   litigant   and latter dismissal is after hearing the litigant.    The latter is always preferred than the  former.”

 

Summary of Question-   Contempt of Court

 Question –  Whether , in a matter relating to contempt of court, the court has to confine itself only to the four corners of the order alleged to have been disobeyed.

Answer-  Yes.  

Rationale:

1. A three judge bench of the Hon’ble Supreme Court in Civil Appeal No.1816 of 2014, decided on 4th. February 2014, the Hon’ble Supreme Court  observed and held:

"15. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts as a cred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others[1],V.M. Manohar Prasad vs. N. Ratnam Raju and Another[2], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others[3] and Union of India and Others vs. Subedar Devassy PV[4]."

[1] (2002) 5 SCC 352

[2] (2004) 13 SCC 610

[3] (2008) 5 SCC 339

[4] (2006) 1 SCC 613

                                                                                                                                                      [Emphasis Supplied]

 

2.  In CIVIL APPEAL NO. 1510 OF 2019, decided on 6th. February 2019, the Hon’ble Supreme Court  applied the said principle laid down in the above decision and observed and held:
 

"17. In the contempt jurisdiction, the court has to confine itself to the four corners of the  order alleged to have been disobeyed.........................Applying the above principles to the present case, it is clear that the Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities. The order passed by
the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside."

 

Summary of Question-    Court’s Liberty to a party to persue appropriate remedy

 Question –  Whether grant of liberty by court to party to a case to persue appropriate remedy debars other party  from raising defence  

Answer-  No.  If  High Court / Supreme Court grants liberty to a party to a case to be free to persue appropriate remedy  for the redressal of his / her grievance in accordance with law; the other party is not precluded from raising defence; it   would be open to the other party to raise all defences

Rationale:

In CIVIL APPEAL NO. 1500 OF 2019, decided on  5th. February 2019,   [where the Apex Court granted liberty - "insofar as the question of compensation for improvements made by the appellants is concerned, the appellants were free to pursue an appropriate remedy for the redressal of their grievances in accordance with law”] the Hon’ble Supreme Court observed and held :

"22.   ........ While dismissing the Special Leave Petition against the judgment of the High Court, this Court in its order dated 25 July 2014 observed that “insofar as the question of compensation for improvements made by the appellants is concerned, the appellants were free to pursue an appropriate remedy for the redressal of their grievances in  accordance with law.” These observations as contained in the order of this Court cannot be construed to mean that the respondents would be deprived of their right to set up a plea of constructive res judicata if the appellants were to raise such a claim. The appellants were, as this Court observed, free to pursue the “appropriate remedy for redressal of their grievances in accordance with law.” This must necessarily be construed to mean that all defences of the respondents upon the invocation of a remedy by the appellants were kept open for decision. The liberty granted by this Court was not one-sided. It encompasses both the ability of the appellants to take recourse and of the respondents to raise necessary defences to the invocation of the remedy........."

 

                                                                                                                                                      [Emphasis Supplied]