Whether a declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function ?

In INDIRA NEHRU GANDHI VS SHRI RAJ NARAIN [ALL SC 1975 NOVEMBER] held:- 190. A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is it the Constitution of India no rigid separation of powers, by and large the spheres … Continue reading Whether a declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function ?

Whether the award could be set aside, if the Arbitral Tribunal has not followed the mandatory procedure prescribed under S. 24, 28 or 31(3), which affects the rights of the parties?

Under sub-section (1)(a) of S. 28 there is a mandate to the Arbitral Tribunal to decide the dispute in accordance with the substantive law for the time being in force in India. Admittedly, substantive law would include the Indian Contract Act, the Transfer of Property Act and other such laws in force. Suppose, if the … Continue reading Whether the award could be set aside, if the Arbitral Tribunal has not followed the mandatory procedure prescribed under S. 24, 28 or 31(3), which affects the rights of the parties?

Whether the Police have the power under the Code of Criminal Procedure to take specimen signature and writing of the accused for examination by the expert.

It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Code of Criminal Procedure in 2005, power has been given to the Magistrate to direct any person including the accused to give his … Continue reading Whether the Police have the power under the Code of Criminal Procedure to take specimen signature and writing of the accused for examination by the expert.

Whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court

The issue is No. more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors., AIR 1996 SC 906; and Tayabbhai … Continue reading Whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court

Whether tenant shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property? No.

As lordship of Supreme Court in case Shri Ram Pasricha v/s Jagannath AIR 1976 SC 2335 is pleased to hold that:­ ”15.. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence act. The tenant cannot deny that the landlord had no title to … Continue reading Whether tenant shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property? No.

Whether at the time of disposal of the application u/o 7 rule 11 of CPC only the facts mentioned in the plaint are to be looked into? yes.

  The law has been settled by  Court in various decisions that while considering an application u/o 7 rule 11 of CPC, the court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. Vide C Natrajan v/s Ashim Bai and another,(2007) 14 … Continue reading Whether at the time of disposal of the application u/o 7 rule 11 of CPC only the facts mentioned in the plaint are to be looked into? yes.

Whether the Central Bureau of Investigation is empowered to conduct ‘fresh’/’re- investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code?

Supreme Court of India in Vinay Tyagi vs Irshad Ali @ Deepak & Ors decided on 13 December, 2012 2. The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal : Question No.1 … Continue reading Whether the Central Bureau of Investigation is empowered to conduct ‘fresh’/’re- investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code?

Whether an application for substitution of a respondent who was dead when the Special Leave Petition was filed was maintainable, and if not, the remedy of the petitioner when he comes to learn that the respondent was actually dead when he filed the Special Leave Petition.

Supreme Court of India in Gurcharan Singh vs Surjit Singh & Anr  decided on 2 November, 2012 The Calcutta High Court has taken a similar view in State of West Bengal v. Manisha Maity (supra) that Order XXII, Rule 4 of the CPC providing for the procedure for substitution of the heirs and legal representatives of … Continue reading Whether an application for substitution of a respondent who was dead when the Special Leave Petition was filed was maintainable, and if not, the remedy of the petitioner when he comes to learn that the respondent was actually dead when he filed the Special Leave Petition.

Whether Section 14 of the limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum in the context of the provisions contained in Arbitration and Conciliation Act, 1996.

The question whether Section 14 of the limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum was considered by a two Judge Bench in State of Goa v. Western Builders (supra) in the context of the provisions contained in Arbitration and Conciliation Act, 1996. The Bench … Continue reading Whether Section 14 of the limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum in the context of the provisions contained in Arbitration and Conciliation Act, 1996.

Whether Section 5 of the limitation Act can be invoked for condonation of delay in filing an application under Section 34 of the Arbitration and Conciliation Act, 1996.

In Union of India v. Popular Construction Company , Supreme Court considered the question whether Section 5 of the limitation Act can be invoked for condonation of delay in filing an application under Section 34 of the Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier decisions in Vidyacharan Shukla v. Khubchand Baghel, … Continue reading Whether Section 5 of the limitation Act can be invoked for condonation of delay in filing an application under Section 34 of the Arbitration and Conciliation Act, 1996.

Whether the Award of the Arbitrator tantamounts to a Decree or not, Yes, an Award has to be enforced under the Code of Civil Procedure in the same manner as it were a Decree of the Court.

(SUPREME COURT OF INDIA) in Leela Hotels Ltd. Versus Housing and Urban Development Corporation Ltd. (2011) 12 SCALE 573 18. It was next submitted by the learned ASG that analogy of a post-decretal payment cannot be applied to an Arbitration Award under the 1996 Act for the simple reason that the Arbitration Award under the 1996 Act does not … Continue reading Whether the Award of the Arbitrator tantamounts to a Decree or not, Yes, an Award has to be enforced under the Code of Civil Procedure in the same manner as it were a Decree of the Court.

Whether there is any limitation for recovering the sum due as arrears of land revenue under the U.P. Public Moneys (Recovery of Dues) Act, 1972, and if there is none, whether recovery can be made within reasonable time or it is open to recover at any point of time?

Allahabad High Court in Narendra Kumar And Anr. vs Collector And Ors. on 23 March, 2004 Equivalent citations: (2004) 2 UPLBEC 2037 held : The Act does not provide for any period of limitation. But Sub-section (4) of Section 3 of the Act is extracted below : “3. (4) In the case of any agreement referred to … Continue reading Whether there is any limitation for recovering the sum due as arrears of land revenue under the U.P. Public Moneys (Recovery of Dues) Act, 1972, and if there is none, whether recovery can be made within reasonable time or it is open to recover at any point of time?

Whether the reference to ADR Process is mandatory Under Section 89 of Code [CPC]

Section 89 starts with the words “where it appears to the court that there exist elements of a settlement”. This clearly shows that cases which are not suited for ADR process should not be referred under section 89 of the Code. The court has to form an opinion that a case is one that is capable of being … Continue reading Whether the reference to ADR Process is mandatory Under Section 89 of Code [CPC]

Whether any interlocutory order passed in an eviction suit under west Bengal premises tenancy Act is assailable under Articles 226 and 227 of the Constitution of India.

Calcutta High Court In  Tapas Biswas Vs. Shyama Prosad Ghosal [(2008)4CALLT455(HC)] The orders passed by the Civil Judge having jurisdiction in connection with any interlocutory proceeding including a proceeding under Section 7 of the West Bengal Premises Tenancy Act, 1997, are the orders passed by the Civil Judge and, as such, is revisable either under Section … Continue reading Whether any interlocutory order passed in an eviction suit under west Bengal premises tenancy Act is assailable under Articles 226 and 227 of the Constitution of India.

Whether the unregistered sale deed sought to be produced by the plaintiff in evidence in a suit for permanent injunction could be marked for a “collateral purposes”?

A Collateral transaction means, a transaction other than the transaction affecting the immovable property but which is in some way connected with it. Before adverting to the case law, I would like to give a brief prelude to the issue. The plain dictionary meaning of the phrase “collateral” is “additional but subordinate, secondary” (Oxford Dictionary, … Continue reading Whether the unregistered sale deed sought to be produced by the plaintiff in evidence in a suit for permanent injunction could be marked for a “collateral purposes”?

A citizen has a right to safeguard the privacy of his own and no one can publish anything without his consent whether truthful or otherwise and whether laudatory or critical.

Supreme Court of India in R. Rajagopal vs State Of T.N [1995 AIR 264, 1994 SCC (6) 632] observed : (1)The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right … Continue reading A citizen has a right to safeguard the privacy of his own and no one can publish anything without his consent whether truthful or otherwise and whether laudatory or critical.

whether a trial court can permit a lacuna in prosecution evidence to be filled up? Supreme Court said yes.

Cr.P.C. S.311: Lacuna Means inherent weakness or a latent wedge: After the defence and prosecution closed their evidence, the prosecution applied to resummon two of it’s already exmined witnessess, for proving it’s certain documents. Thus, a question arose, whether a trial court can permit a lacuna in prosecution evidence to be filled up? Upholding allowing the application, … Continue reading whether a trial court can permit a lacuna in prosecution evidence to be filled up? Supreme Court said yes.

C.P.C. O. 41, R. 31: Mere formulation of a point by the first Appellate Court as to “Whether the judgment of the trial court is correct, legal or valid” is a hopeless wrong method

The judgment of Appellate Court shall state the points for determination. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. The judgments of the Appeal Courts below the points for determination being formulated … Continue reading C.P.C. O. 41, R. 31: Mere formulation of a point by the first Appellate Court as to “Whether the judgment of the trial court is correct, legal or valid” is a hopeless wrong method

Whether the acceptance of a bribe by a police official with the object of weakening the prosecution case could be said under to be under `colour of duty’ or in excess of his duty

The State of Andhra Pradesh v. N. Venugopal and Ors., AIR 1964 SC 33, State of Maharashtra v. Narhar Rao, AIR 1966 SC 1783, State of Maharashtra v. Atma Ram AIR 1966 SC 1786 Bhanuprasad Hariprasad Dave and Anr. v. The State of Gujarat AIR 1968 SC 1323 The expression `colour of duty’ must now … Continue reading Whether the acceptance of a bribe by a police official with the object of weakening the prosecution case could be said under to be under `colour of duty’ or in excess of his duty

Whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements.

In Gulab Chand v. State of M.P., AIR 1995 SC 1598, Supreme Court upheld the conviction for committing dacoity on the basis of recovery of ornaments of the deceased from the possession of the person accused of robbery and murder immediately after the occurrence. 7.2. In Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC … Continue reading Whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements.

whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (“Cr.P.C.”) has been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses.

In AG Vs. Shiv Kumar Yadav & ANR.[Criminal Appeal Nos.1187-1188 of 2015 arising out of SLP (CRL) Nos.1899-1900 of 2015] Following observations have been made by the Supreme court : fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the … Continue reading whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (“Cr.P.C.”) has been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses.

Whether a Court can pass an interim order not to arrest the applicant, where an application under Section 438 of the Code is pending disposal.

Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused … Continue reading Whether a Court can pass an interim order not to arrest the applicant, where an application under Section 438 of the Code is pending disposal.

Whether the registration of a criminal case under Section 154(1) of the CRIMINAL PROCEDURE Code ipso facto warrants the setting in motion of an investigation ?

KEYWORDS : FIR- INVESTIGATION- Section 157(1) OF CRIMINAL PROCEDURE CODE requires an Officer Incharge of a Police Station who ‘from information received or otherwise’ has reason to suspect the commission of an offence-that is a cognizable offence-which he is empowered to investigate under Section 156, to forthwith send a report to a Magistrate empowered to … Continue reading Whether the registration of a criminal case under Section 154(1) of the CRIMINAL PROCEDURE Code ipso facto warrants the setting in motion of an investigation ?