Hindu Law—Partition—A suit for partition stands disposed of only with passing of final decree—In a partition suit, Court has jurisdiction to amend shares suitably, even if preliminary decree has been passed, if some member of family to whom an allotment was made in preliminary decree dies thereafter—Share of deceased would devolve upon other parties to a suit or even a third party, depending upon nature of succession or transfer—Validity of such succession, whether testate or intestate or transfer, can certainly be considered at the stage of final decree proceedings. Continue reading
- “we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under Section 151 of the Code”.
- The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic.
- The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence.
Supreme Court held that, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any EVIDENCE. From the facts of the case, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the Investigating Officer if he failed to remain present at the time of the trial of the case. The presence of Investigating Officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch. Continue reading
- Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.
- The word “EVIDENCE” in Section 319 contemplates EVIDENCE of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (See Lok Ram v. Nihal Singh and Anr. (AIR 2006 SC 1892)).
- In service jurisprudence, the appointments are made by employer with different nomenclature/characteristics. Appointments are made both on permanent or temporary basis against permanent post or temporary post. The appointment can also be made on adhoc basis on permanent or temporary post. There is one common feature of appointments of permanent, temporary or adhoc appointment i.e. those appointments are made against the post whether permanent or temporary.
- On the contrary, for contractual appointment, there is no requirement of existence of any post. A contractual appointment is not normally made against a post. Further, contractual appointments are also not normally on Pay Scale. On the mere fact that the advertisement as well as the appointment was made initially for a period of five years, the nature of appointment of the appellants cannot be termed as contractual appointment. When a Government servant is contemplated to hold a certain post for a limited period it is a Tenure Post.
SUPREME COURT OF INDIA
K. Anbazhagan & ANR. Vs. The Registrar General, High Court of Madras & ANR. Continue reading